45486 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 212 and 236 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 410 

[DHS Docket No. ICEB–2018–0002] 

RIN 1653–AA75, 0970–AC42 

Apprehension, Processing, Care, and 

Custody of Alien Minors and 

Unaccompanied Alien Children 

AGENCY: U.S. Immigration and Customs 

Enforcement (ICE), U.S. Department of 

Homeland Security (DHS); U.S. 

Citizenship and Immigration Services 

(USCIS), DHS; U.S. Customs and Border 

Protection (CBP), DHS; Office of Refugee 

Resettlement (ORR), Administration for 

Children and Families (ACF), U.S. 

Department of Health and Human 

Services (HHS). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Homeland Security (DHS) and the 

Department of Health and Human 

Services (HHS) (‘‘the Departments’’) 

propose to amend regulations relating to 

the apprehension, processing, care, 

custody, and release of alien juveniles. 

In 1985, plaintiffs in a class action 

lawsuit, Flores v. Reno, challenged the 

policies of the legacy Immigration and 

Naturalization Service (INS) relating to 

the detention, processing, and release of 

alien juveniles. The parties reached a 

settlement agreement, referred to as the 

Flores Settlement Agreement (FSA). The 

FSA, as modified in 2001, provides that 

it will terminate forty-five days after 

publication of final regulations 

implementing the agreement. The rule 

would adopt in regulations provisions 

that parallel the relevant and 

substantive terms of the FSA, consistent 

with the HSA and TVPRA, with some 

modifications discussed further below 

to reflect intervening statutory and 

operational changes while still 

providing similar substantive 

protections and standards. It therefore 

would terminate the FSA. The rule 

would satisfy the basic purpose of the 

FSA in ensuring that all juveniles in the 

government’s custody are treated with 

dignity, respect, and special concern for 

their particular vulnerability as minors, 

while doing so in a manner that is 

workable in light of subsequent changes. 

The rule would also implement closely 

related provisions of the HSA and 

TVPRA. 

Most prominently, the rule would 

create an alternative to the existing 

licensed program requirement for family 

residential centers, so that ICE may use 

appropriate facilities to detain family 

units together during their immigration 

proceedings, consistent with applicable 

law. 

DATES: Written comments and related 

material must be submitted on or before 

November 6, 2018. 

ADDRESSES: You may submit comments 

on the entirety of this proposed rule 

package identified by DHS Docket No. 

ICEB–2018–0002, by any one of the 

following methods: 

• Federal eRulemaking Portal 

(preferred): https://www.regulations.gov. 

Follow the website instructions for 

submitting comments. 

• Email: ICE.Regulations@

ice.dhs.gov. Include DHS Docket No. 

ICEB–2018–0002 in the subject line of 

the message. 

• Mail: Debbie Seguin, Assistant 

Director, Office of Policy, U.S. 

Immigration and Customs Enforcement, 

Department of Homeland Security, 500 

12th Street SW, Washington, DC 20536. 

To ensure proper handling, include 

DHS Docket No. ICEB–2018–0002 in 

your correspondence. Mail must be 

postmarked by the comment submission 

deadline. 

• Hand Delivery/Courier: Visitor 

Entrance, U.S. Immigration and 

Enforcement, Department of Homeland 

Security, 500 12th Street SW, 

Washington, DC 20536. 

Instructions: All comments submitted 

outside of the Federal eRulemaking 

Portal must include the docket number 

for this rulemaking. All comments 

received may be posted without change 

to the Federal eRulemaking Portal at 

https://www.regulations.gov, including 

any personal or commercial information 

provided. For detailed instructions on 

sending comments and additional 

information on the rulemaking process, 

see the ‘‘Public Participation’’ heading 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: For access to the docket to 

read background documents or 

comments received, go to https://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

For DHS: Debbie Seguin, Assistant 

Director, Office of Policy, U.S. 

Immigration and Enforcement, 

Department of Homeland Security, 500 

12th Street SW, Washington, DC 20536. 

Telephone 202–732–6960 (not a toll-free 

number). 

For HHS: Division of Policy, Office of 

the Director, Office of Refugee 

Resettlement, Administration for 

Children and Families, by email at 

UACPolicy@acf.hhs.gov. Do not email 

comments on the proposed rule to this 

address. Office of Refugee Resettlement, 

330 C Street SW, Washington, DC 

20201. Telephone 202–401–9246. 

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 Regulatory Action 

B. Legal Authority 

C. Costs and Benefits 

IV. Background and Purpose 

A. History 

B. Authority 

1. Statutory and Regulatory Authority 

2. Flores Settlement Agreement 

Implementation 

3. Recent Court Orders 

C. Basis and Purpose of Regulatory Action 

1. Need for Regulations Implementing the 

Relevant and Substantive Terms of the 

FSA 

2. Purpose of the Regulations 

V. Discussion of Elements of the Proposed 

Rule 

A. DHS Regulations 

B. HHS Regulations 

VI. Statutory and Regulatory Requirements 

A. Executive Orders 12866 and 13563: 

Regulatory Review 

B. Regulatory Flexibility Act 

C. Small Business Regulatory Enforcement 

Fairness Act of 1996 

D. Unfunded Mandates Reform Act of 1995 

E. Congressional Review Act 

F. Paperwork Reduction Act 

G. Executive Order 13132: Federalism 

H. Executive Order 12988: Civil Justice 

Reform 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

J. National Environmental Policy Act 

(NEPA) 

K. Executive Order 12630: Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

L. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

M. National Technology Transfer and 

Advancement Act 

N. Family Assessment 

VII. List of Subjects and Regulatory 

Amendments 

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. The Departments also invite 

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:// 


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Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 45487 

www.regulations.gov as part of the 

public record and will include any 

personal or commercial information you 

provide. 

A. Submitting Comments 

All comments must be submitted in 

English, or an English translation must 

be provided. Comments that will 

provide the most assistance to the 

Departments 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. 

As this rule is being promulgated by two 

Departments, it is especially helpful if 

your comment, and each relevant part of 

that comment, indicates a specific 

section to which it applies, or at a 

minimum each specific Department or 

Departments to which it is addressed. In 

this way, the comment may be better 

understood and distributed to the 

appropriate Department for response. 

You may submit your comments and 

materials online or by mail, 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 ‘‘ICEB– 

2018–0002’’ 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. If you submit your 

comments by mail, you must include 

DHS Docket No. ICEB–2018–0002, and 

submit them in an unbound format, no 

larger than 81⁄2 by 11 inches, suitable for 

copying and electronic scanning and 

filing. If you submit comments by mail 

and would like to know that they 

reached the facility, please enclose a 

stamped, self-addressed postcard or 

envelope. 

Regardless of the method used for 

submitting comments or material, all 

submissions will be posted, without 

change, to the Federal eRulemaking 

Portal at https://www.regulations.gov, 

and will include any personal or 

commercial information you provide. 

Therefore, submitting this information 

makes it public. You may wish to 

consider limiting the amount of 

personal or commercial information that 

you provide in any voluntary public 

comment submission you make to the 

Departments. The Departments may 

withhold information provided in 

comments from public viewing that is 

determined may impact the privacy of 

an individual or is offensive. For 

additional information, please read the 

‘‘Privacy and Security Notice’’ that is 

available via the link in the footer of 

https://www.regulations.gov. 

We will consider all comments and 

materials received during the comment 

period and may change this rule based 

on your comments. 

Note: The Departments will only consider 

comments timely submitted to the docket for 

this rulemaking. In light of the period of time 

that has elapsed since the 1998 DOJ proposed 

rule on this topic, the Departments have 

established a new docket for this rulemaking. 

Comments submitted to the Departments on 

this topic prior to opening of the docket for 

this proposed rule will not be incorporated 

into the docket for this rulemaking; 

commenters should resubmit those 

comments, with necessary updates, as 

appropriate. 

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 

‘‘ICEB–2018–0002’’ 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 ICE through the FOR FURTHER

INFORMATION CONTACT section above. 

You may also 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 of our 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 

BPA—U.S. Border Patrol Agent 

CBP—U.S. Customs and Border Protection 

CBPO—U.S. Customs and Border Protection 

Officer 

DHS—U.S. Department of Homeland 

Security 

DOJ—U.S. Department of Justice 

EOIR—Executive Office for Immigration 

Review 

FRC—Family Residential Center 

FSA—Flores Settlement Agreement 

HHS—U.S. Department of Health and Human 

Services 

HSA—Homeland Security Act of 2002 

ICE—U.S. Immigration and Customs 

Enforcement 

IIRIRA—Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 

INA—Immigration and Nationality Act 

INS—Immigration and Naturalization Service 

JFRMU—Juvenile and Family Residential 

Management Unit 

OFO—U.S. Customs and Border Protection, 

Office of Field Operations 

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 

UAC(s)—Unaccompanied Alien Child(ren) 

USCIS—U.S. Citizenship and Immigration 

Services 

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

Border Protection 

III. Executive Summary 

A. Purpose of the Regulatory Action 

This rulemaking would implement 

the relevant and substantive terms of the 

Flores Settlement Agreement (FSA), 

with such limited changes as are 

necessary to implement closely-related 

provisions of the Homeland Security 

Act of 2002 (HSA), Public Law 107–296, 

sec. 462, 116 Stat. 2135, 2202, and the 

William Wilberforce Trafficking Victims 

Protection Reauthorization Act of 2008 

(TVPRA), Public Law 110–457, title II, 

subtitle D, 122 Stat. 5044. The proposed 

regulations would take account of 

certain changed circumstances, ensure 

that the regulations accomplish a sound 

and proper implementation of governing 

federal statutes, and set forth a 

sustainable operational model of 

immigration enforcement. For example, 

one operational shift under the FSA has 

been the extension of the agreement to 

apply to accompanied minors, i.e., 

juveniles who arrive at the border with 

their parents or legal guardians. That 

has created a series of operational 

difficulties, most notably with respect to 

a state-licensing requirement for a 

family residential center (FRC) in which 

such parents/legal guardians and 

children may be placed during 

immigration proceedings. Additionally, 

changes to the operational environment 

since 1997, as well as the enactment of 

the HSA and the TVPRA, have rendered 

some of the substantive terms of the 

FSA outdated, similarly making 

compliance with the HSA, the TVPRA, 

other immigration laws, and the FSA 

problematic without some modification 

of the literal text of the FSA. These 

provisions are designed, however, so 

that they still implement the substantive 


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1Some UACs from contiguous countries may be 

permitted to withdraw their application for 

admission and be repatriated. These UACs are not 

referred to HHS. 8 U.S.C. 1232(a)(2). 

2Throughout this Notice of Proposed 

Rulemaking, the Departments generally use the 

term ‘‘juvenile’’ to refer to any alien under the age 

of 18. For further explanation, see below for 

discussion of the terms ‘‘juvenile,’’ ‘‘minor,’’ and 

‘‘unaccompanied alien child (UAC).’’ 

and underlying purpose of the FSA, by 

ensuring that juveniles are provided 

materially identical protections as under 

the FSA itself. Therefore, the 

Departments are proposing these 

regulations to allow the public to 

comment on our proposed framework 

for compliance with the FSA, consistent 

with current law. 

From a practical perspective, one of 

the most important changes from the 

literal text of the FSA would be the 

licensing requirement that applies to 

programs in which minors may be 

detained during immigration 

proceedings. Under the FSA, such 

facilities must be licensed ‘‘by an 

appropriate State agency . . . for 

dependent children.’’ FSA paragraph 6. 

That requirement is sensible for 

unaccompanied alien children, because 

all States have licensing schemes for the 

housing of unaccompanied juveniles 

who are by definition ‘‘dependent 

children,’’ and accordingly the rule 

would not change that requirement for 

those juveniles. But the need for the 

license to come specifically from a 

‘‘state agency’’ (rather than a federal 

agency) is problematic now that the FSA 

has been held to apply to accompanied 

minors, including those held at FRCs, 

because States generally do not have 

licensing schemes for facilities to hold 

minors who are together with their 

parents or legal guardians, and therefore 

are by definition not ‘‘dependent 

children.’’ The application of the FSA’s 

requirement for ‘‘state’’ licensing to 

accompanied minors can effectively 

require DHS to release minors from 

detention in a non-state-licensed facility 

even if the parent/legal guardian and 

child would otherwise continue to be 

detained together during their removal 

proceedings, consistent with applicable 

law. The rule here would eliminate that 

barrier to the continued use of FRCs, by 

creating an alternative federal licensing 

scheme for such facilities. The goal is to 

provide materially identical assurances 

about the conditions of such facilities, 

and thus to implement the underlying 

purpose of the FSA’s licensing 

requirement, and in turn to allow 

families to remain together during their 

immigration proceedings. 

B. Legal Authority 

The Secretary of Homeland Security 

derives her authority to promulgate 

these proposed regulatory amendments 

primarily from the Immigration and 

Nationality Act (INA or Act), as 

amended, 8 U.S.C. 1101 et seq. The 

Secretary may ‘‘establish such 

regulations’’ as she deems necessary for 

carrying out her authorities under the 

INA. INA sec. 103(a)(3), 8 U.S.C. 

1103(a)(3). In addition, section 462 of 

the HSA and section 235 of the TVPRA 

prescribe substantive requirements and 

procedural safeguards to be 

implemented by DHS and HHS with 

respect to unaccompanied alien 

children (UACs). There have also been 

a series of court decisions arising out of 

the FSA. See, e.g., Flores v. Sessions, 

862 F.3d 863 (9th Cir. 2017); Flores v. 

Lynch, 828 F.3d 898 (9th Cir. 2016); 

Flores v. Sessions, No. 2:85–cv–04544 

(C.D. Cal. June 27, 2017). 

Section 462 of the HSA also 

transferred to the Office of Refugee 

Resettlement (ORR) Director ‘‘functions 

under the immigration laws of the 

United States with respect to the care of 

unaccompanied alien children that were 

vested by statute in, or performed by, 

the Commissioner of Immigration and 

Naturalization.’’ 6 U.S.C. 279(a). The 

ORR Director may, for purposes of 

performing a function transferred by 

this section, ‘‘exercise all authorities 

under any other provision of law that 

were available with respect to the 

performance of that function to the 

official responsible for the performance 

of the function’’ immediately before the 

transfer of the program. 6 U.S.C. 

279(f)(1). 

Consistent with provisions in the 

HSA, the TVPRA places the 

responsibility for the care and custody 

of all UACs who are not eligible to be 

repatriated to a contiguous country with 

the Secretary of Health and Human 

Services.1 Prior to the transfer of the 

program, the Commissioner of 

Immigration and Naturalization, 

through a delegation from the Attorney 

General, had authority ‘‘to establish 

such regulations . . . as he deems 

necessary for carrying out his authority 

under the provisions of this Act.’’ INA 

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

8 CFR 2.1 (2002). In accordance with the 

relevant savings and transfer provisions 

of the HSA, see 6 U.S.C. 279, 552, 557; 

see also 8 U.S.C. 1232(b)(1), the ORR 

Director now possesses the authority to 

promulgate regulations concerning 

ORR’s administration of its 

responsibilities under the HSA and 

TVPRA, and the FSA at paragraph 40, 

as well, specifically envisions 

promulgation of such regulations. 

C. Costs and Benefits 

This proposed rule would implement 

the FSA by putting in regulatory form 

measures that materially parallel its 

standards and protections, and also by 

codifying the current requirements for 

complying with the FSA, the HSA, and 

TVPRA. U.S. Customs and Border 

Protection (CBP) and U.S. Immigration 

and Customs Enforcement (ICE) 

encounter minors and UACs in different 

manners. CBP generally encounters 

UACs and minors at the border. In 

Fiscal Year (FY) 2017, CBP 

apprehended 113,920 juveniles.2

Generally, ICE encounters minors either 

upon transfer from CBP to a family 

residential center (FRC), or during 

interior enforcement actions. In FY 

2017, 37,825 family members were 

booked into ICE’s three FRCs, 20,606 of 

whom were minors. ICE generally 

encounters UACs when it transports 

UACs who are transferred out of CBP 

custody to ORR custody, as well as 

during interior enforcement actions. 

The Departments consider their 

current operations and procedures for 

implementing the terms of the FSA, the 

HSA, and the TVPRA to be the baseline 

for the analysis of costs and benefits. 

DHS already incurs the costs for these 

operations; therefore, they are not costs 

of this proposed rule. A primary source 

of new costs for the proposed rule 

would be a result of the proposed 

alternative licensing process, which 

would allow ICE to continue detaining 

some minors along with their 

accompanying parent or legal guardian 

in FRCs. ICE also is proposing changes 

to its current practice for parole 

determinations to align them with 

applicable statutory and regulatory 

authority, which may result in fewer 

minors or their accompanying parent or 

legal guardian released on parole. These 

changes may increase variable annual 

FRC costs paid by ICE. While DHS 

acknowledges that this rule may result 

in additional or longer detention for 

certain minors, DHS is unsure how 

many individuals will be detained at 

FRCs after this rule is effective or for 

how much longer individuals may be 

detained because there are so many 

other variables to consider. Therefore, 

DHS is unable to provide a quantified 

estimate of any increased FRC costs. 

DHS is also unable to provide an 

estimate of the cost of any increased 

detention on the individuals being 

detained. HHS does not anticipate 

significant new costs associated with 

this rule, although it will assume some 

costs from the Department of Justice 

related to hearings for UACs, with 

potential associated start-up costs. 


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The primary benefit of the proposed 

rule would be to implement the FSA in 

regulations, and in turn to terminate the 

agreement as contemplated by the FSA 

itself. The result would be to provide for 

the sound administration of the 

detention and custody of alien minors 

and UACs to be carried out fully, 

pursuant to the INA, HSA, TVPRA, and 

existing regulations issued by the 

Departments responsible for 

administering those statutes, rather than 

partially carried out via a decades-old 

settlement agreement. The rule would 

ensure that applicable regulations 

reflect the Departments’ current 

operations with respect to minors and 

UACs in accordance with the relevant 

and substantive terms of the FSA and 

the TVPRA, as well as the INA. Further, 

by modifying the literal text of the FSA 

in limited cases to reflect and respond 

to intervening statutory and operational 

changes, DHS will ensure that it retains 

discretion to detain families, as 

appropriate and pursuant to its statutory 

and regulatory authorities, to meet its 

enforcement needs, but while still 

providing similar protections to minors. 

HHS was not an original party to the 

FSA and instead inherited 

administration of some of its provisions. 

The proposed rule similarly benefit 

HHS as it clearly delineates ORR’s 

responsibilities from that of other 

Federal partners. Additionally, the 

proposed implementation of the FSA’s 

substantive provisions, specifically the 

minimum standards for licensed 

facilities and the release process, would 

provide clear standards for the 

program’s network of state licensed 

facilities. 

IV. Background and Purpose 

A. History 

Prior to the enactment of the HSA, the 

Attorney General and the legacy INS 

had the primary authority to administer 

and enforce the immigration laws. In the 

period leading up to the Flores litigation 

in the mid-1980s, the general 

nationwide INS policy, based on 

regulations promulgated in 1963 and the 

Juvenile Justice and Delinquency 

Prevention Act of 1974, was that alien 

juveniles could petition an immigration 

judge for release from INS custody if an 

order of deportation was not final. See 

Reno v. Flores, 507 U.S. 292, 324–25 

(1993). In 1984, the Western Region of 

the INS implemented a different release 

policy for juveniles, and the INS later 

adopted that policy nationwide. Under 

that policy, juveniles could only be 

released to a parent or a legal guardian. 

The rationale for the policy was twofold: (1) To protect the juvenile’s 

welfare and safety, and (2) to shield the 

INS from possible legal liability. The 

policy allowed alien juveniles to be 

released to other adults only in unusual 

and extraordinary cases at the discretion 

of the District Director or Chief Patrol 

Agent. See Flores v. Meese, 942 F.2d 

1352 (9th Cir. 1991) (en banc). 

On July 11, 1985, four alien juveniles 

filed a class action lawsuit in the U.S. 

District Court for the Central District of 

California, Flores v. Meese, No. 85–4544 

(C.D. Cal. filed July 11, 1985). The case 

‘‘ar[ose] out of the INS’s efforts to deal 

with the growing number of alien 

children entering the United States by 

themselves or without their parents 

(unaccompanied alien minors).’’ Flores 

v. Meese, 934 F.2d 991, 993 (9th Cir. 

1990). The class was defined to consist 

of ‘‘all persons under the age of eighteen 

(18) years who have been, are, or will 

be arrested and detained pursuant to 8 

U.S.C. 1252 by the INS within the INS’ 

Western Region and who have been, are, 

or will be denied release from INS 

custody because a parent or legal 

guardian fails to personally appear to 

take custody of them.’’ Id. at 994.). The 

Flores litigation challenged ‘‘(a) the 

[INS] policy to condition juveniles’ 

release on bail on their parents’ or legal 

guardians’ surrendering to INS agents 

for interrogation and deportation; (b) the 

procedures employed by the INS in 

imposing a condition on juveniles’ bail 

that their parents’ or legal guardians’ 

[sic] surrender to INS agents for 

interrogation and deportation; and (c) 

the conditions maintained by the INS in 

facilities where juveniles are 

incarcerated.’’ See Flores Compl. 

paragraph 1. The plaintiffs claimed that 

the INS’s release and bond practices and 

policies violated, among other things, 

the INA, the Administrative Procedure 

Act, and the Due Process Clause and 

Equal Protection Guarantee under the 

Fifth Amendment. See id. paragraphs 

66–69. 

Prior to a ruling on any of the issues, 

on November 30, 1987, the parties 

entered into a Memorandum of 

Understanding (MOU) on the conditions 

of detention. The MOU stated that 

minors in INS custody for more than 72 

hours following arrest would be housed 

in facilities that met or exceeded the 

standards set forth in the April 29, 1987, 

U.S. Department of Justice Notice of 

Funding in the Federal Register and in 

the document ‘‘Alien Minors Shelter 

Care Program—Description and 

Requirements.’’ See Notice of 

Availability of Funding for Cooperative 

Agreements; Shelter Care and Other 

Related Services to Alien Minors, 52 FR 

15569, 15570 (Apr. 29, 1987). The 

Notice provided that eligible grant 

applicants for the funding described in 

the Notice included organizations that 

were ‘‘appropriately licensed or can 

expeditiously meet applicable state 

licensing requirements for the provision 

of shelter care, foster care, group care 

and other related services to dependent 

children . . . .’’ Id. 

At approximately the same time that 

the MOU was executed, the INS 

published a proposed rule on the 

Detention and Release of Juveniles to 

amend 8 CFR parts 212 and 242. See 52 

FR 38245 (Oct. 15, 1987). The stated 

purpose of the rule was ‘‘to codify the 

[INS] policy regarding detention and 

release of juvenile aliens and to provide 

a single policy for juveniles in both 

deportation and exclusion 

proceedings.’’ The INS issued a final 

rule in May 1988. 53 FR 17449 (May 17, 

1988). The rule provided for release to 

a parent, guardian, or other relative, and 

discretionary release to other adults. See 

53 FR at 17451. It also provided that 

when adults are in detention, INS 

would consider release of the adult and 

parent. Id. 

On May 24, 1988, the district court 

where the original Flores case was filed 

held that the recently codified INS 

regulation, 8 CFR 242.24 (1988), 

governing the release of detained alien 

minors, violated substantive due 

process, and ordered modifications to 

the regulation. The district court also 

held that INS release and bond 

procedures for detained minors in 

deportation proceedings fell short of the 

requirements of procedural due process, 

and therefore ordered the INS 

‘‘forthwith’’ to provide to any minor in 

custody an ‘‘administrative hearing to 

determine probable cause for his arrest 

and the need for any restrictions placed 

upon his release.’’ Flores v. Meese, 934 

F.2d 991, 993 (9th Cir. 1990) (quoting 

the district court). The INS appealed, 

and the Ninth Circuit reversed the 

district court’s holdings that the INS 

exceeded its statutory authority in 

promulgating 8 CFR 242.24 and that the 

regulation violated substantive due 

process. The Ninth Circuit also reversed 

the district court’s procedural due 

process holding, identified the legal 

standard that the district court should 

have applied, and remanded the issue 

for the district court to further explore 

the issue. Id. at 1013. On rehearing en 

banc, however, the Ninth Circuit 

vacated the original panel’s opinion, 

affirmed the district court’s holding, and 

held that INS’s regulation was invalid 

because the regulation violated the alien 

child’s due process and habeas corpus 

rights, and detention where the alien 

child was otherwise eligible for release 

on bond or recognizance to a custodian 


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served no legitimate purpose of the INS. 

Flores v. Meese, 942 F.2d 1352 (9th Cir. 

1991) (en banc) (‘‘The district court 

correctly held that the blanket detention 

policy is unlawful. The district court’s 

order appropriately requires children to 

be released to a responsible adult where 

no relative or legal guardian is available, 

and mandates a hearing before an 

immigration judge for the determination 

of the terms and conditions of release.’’). 

The INS appealed, and in 1993, the 

U.S. Supreme Court rejected Plaintiffs’ 

facial challenge to the constitutionality 

of the INS’s regulation concerning the 

care of alien juveniles. Reno v. Flores, 

507 U.S. 292 (1993). The Supreme Court 

held that the regulations did not violate 

any substantive or procedural due 

process rights or equal protection 

principles. Id. at 306, 309. According to 

the Court, the regulations did not 

exceed the scope of the Attorney 

General’s discretion under the INA to 

continue custody over arrested aliens, 

because the challenged regulations 

rationally pursued the lawful purpose of 

protecting the welfare of such juveniles. 

Id. at 315. 

The regulations promulgated in 1988 

have remained in effect since 

publication, but were moved to 8 CFR 

236.3 in 1997. See 62 FR 10312, 10360 

(Mar. 6, 1997). They were amended in 

2002 when the authority to decide 

issues concerning the detention and 

release of juveniles was moved to the 

Director of the Office of Juvenile Affairs 

from the District Directors and Chief 

Patrol Agents. See 67 FR 39255, 39258 

(June 7, 2002). 

The Supreme Court decision in Reno 

v. Flores only resolved one of the issues 

in the case. The district court approved 

the FSA on January 28, 1997. In 1998, 

the INS published a proposed rule 

having a basis in the substantive terms 

of the FSA, entitled Processing, 

Detention, and Release of Juveniles. See 

63 FR 39759 (July 24, 1998). In 2001 the 

parties added a stipulation in the FSA, 

which terminates the FSA ‘‘45 days 

following defendants’ publication of 

final regulations implementing t[he] 

Agreement.’’ Stipulated Settlement 

Agreement paragraph 40 [hereinafter 

FSA], Flores v. Reno, No. CV 85–4544– 

RJK(Px) (C.D. Cal. Dec. 7, 2001). In 

January 2002, the INS reopened the 

comment period on the 1998 proposed 

rule, 67 FR 1670 (Jan. 14, 2002), but the 

rulemaking was ultimately abandoned. 

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 MOU 

and later the FSA. 

Whereas only one Department was 

involved in the creation of the FSA, 

three Departments now implement the 

FSA’s substantive terms. After the 2001 

Stipulation, Congress enacted the HSA 

and the TVPRA, both of which impact 

the treatment of alien juveniles. Among 

other changes, the HSA created DHS 

and, along with the TVPRA, transferred 

the functions under the immigration 

laws with respect to the care and then 

custody of UACs referred by other 

Federal agencies to HHS ORR. The 

TVPRA also further regulated the 

Departments’ respective roles with 

respect to UACs. See 6 U.S.C. 111(a), 

279; 8 U.S.C. 1232(b)(1). 

To summarize those roles under the 

current statutory framework: DHS 

apprehends, provides care and custody 

for, transfers, and removes alien minors; 

DHS apprehends, transfers, and removes 

UACs; and ORR provides for care and 

custody of UACs who are in federal 

custody (other than those permitted to 

withdraw their application for 

admission) referred to ORR by other 

Departments. DHS and HHS are 

therefore now proposing to issue 

regulations implementing the relevant 

and substantive terms of the FSA, 

consistent with the HSA and TVPRA, 

and in turn to terminate the FSA. 

B. Authority 

1. Statutory and Regulatory Authority 

a. Immigration and Nationality Act and 

the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 

The INA, as amended, provides the 

primary authority for DHS to detain 

certain aliens for violations of the 

immigration laws. Congress expanded 

legacy INS’s detention authority in 

IIRIRA, Public Law 104–208, 110 Stat. 

3009. In that legislation, Congress 

amended the INA by providing that 

certain aliens were subject to either 

mandatory or discretionary detention by 

the INS. This authorization flowed to 

DHS after the reorganization under the 

HSA. Specifically, DHS’s authority to 

detain certain aliens comes from 

sections 235, 236, and 241 of the INA, 

8 U.S.C. 1225, 1226, and 1231. Section 

235 of the INA, 8 U.S.C. 1225, provides 

that applicants for admission to the 

United States, including those subject to 

expedited removal, shall be detained 

during their removal proceedings, 

although such aliens may be released on 

parole in limited circumstances, 

consistent with the statutory standard 

set forth in 8 U.S.C. 1182(d)(5) and 

standards set forth in the regulations. 

Section 236 of the INA, 8 U.S.C. 1226, 

provides the authority to arrest and 

detain an alien pending a decision on 

whether the alien is to be removed from 

the United States, and section 241, 8 

U.S.C. 1231, authorizes the detention of 

aliens during the period following the 

issuance of a final order of removal. 

Other provisions of the INA also 

mandate detention of certain classes of 

individuals, such as criminal aliens. 

b. Homeland Security Act of 2002 

As noted, the HSA, Public Law 107– 

296, 116 Stat. 2135, transferred most of 

the functions of the INS from DOJ to the 

newly-created DHS. DHS and its various 

components are responsible for border 

security, interior immigration 

enforcement, and immigration benefits 

adjudication, among other duties. DOJ’s 

EOIR retained its pre-existing functions 

relating to the immigration and 

naturalization of aliens, including 

conducting removal proceedings and 

adjudicating defensive filings of asylum 

claims. 

The functions regarding care of UACs 

were transferred from the INS to ORR. 

The HSA states ORR shall be 

responsible to coordinate and 

implement the care and placement of 

UACs who are in Federal custody by 

reason of their immigration status. ORR 

was also tasked with identifying a 

sufficient number of qualified 

individuals, entities, and facilities to 

house UACs, and with ensuring that the 

interests of the child are considered in 

decisions and actions relating to his or 

her care and custody. 

c. William Wilberforce Trafficking 

Victims Protection Reauthorization Act 

of 2008 

Section 235 of the William 

Wilberforce Trafficking Victims 

Protection Reauthorization Act of 2008 

(TVPRA), Public Law 110–457, Title II, 

Subtitle D, 122 Stat. 5044 (codified in 

principal part at 8 U.S.C. 1232), then 

stated that consistent with the HSA, and 

except as otherwise provided with 

respect to certain UAC from contiguous 

countries (see 8 U.S.C. 1232(a)), the care 

and custody of all UAC, including 

responsibility for their detention, where 

appropriate, shall be the responsibility 

of HHS. The TVPRA, among other 

things, requires federal agencies to 

notify HHS within 48 hours of 

apprehending or discovering a UAC, or 

receiving a claim or having suspicion 

that an alien in their custody is an 

unaccompanied minor under 18 years of 

age. 8 U.S.C. 1232(b)(2). The TVPRA 

further requires that, absent exceptional 

circumstances, any federal agency 

transfer a UAC to the care and custody 

of HHS within 72 hours of determining 

that an alien in its custody is a UAC. 8 

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

The Secretary of HHS delegated the 

authority under the TVPRA to the 


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3 In this context, ‘‘class members’’ means minors 

(as defined in the FSA), including both UACs and 

accompanied minors. 

4 DHS continues to maintain that the terms of the 

FSA were intended to apply only to those alien 

children who were unaccompanied. In its brief 

opposing the Plaintiffs’ Motion to Enforce II, DHS 

pointed out that the FSA was entered into for the 

purpose of settling a lawsuit challenging the 

constitutionality of the Government’s policies, 

practices, and regulations regarding the detention 

and release of unaccompanied minors. See Def.’s 

Resp. in Opp’n to Mot. To Enforce Settlement of 

Class Action at 11, Flores v. Lynch, 212 F. Supp. 

3d 907 (C.D. Cal. 2015) (No. CV 58–4544). This 

proposed rule, however, covers both accompanied 

and unaccompanied minors. 

Assistant Secretary for Children and 

Families, 74 FR 14564 (2009), who in 

turn delegated the authority to the ORR 

Director, 74 FR 1232 (2009). 

2. Flores Settlement Agreement 

Implementation 

As discussed above, in 1996 the U.S. 

Government and Flores plaintiffs 

entered into the FSA to resolve 

nationwide the ongoing litigation 

concerning the INS’s detention 

regulations for alien minors. The FSA 

was executed on behalf of the 

Government on September 16, 1996. 

The U.S. District Court for the Central 

District of California approved the FSA 

on January 28, 1997. The FSA became 

effective upon its approval by the 

district court, and provided for 

continued oversight by that court. 

Paragraph 9 of the FSA explains its 

purpose: To establish a ‘‘nationwide 

policy for the detention, release, and 

treatment of minors in the custody of 

the INS.’’ Paragraph 4 defines a ‘‘minor’’ 

as ‘‘any person under the age of eighteen 

(18) years who is detained in the legal 

custody of the INS,’’ but the definition 

excludes minors who have been 

emancipated or incarcerated due to a 

criminal conviction as an adult. The 

FSA established procedures and 

conditions for processing, 

transportation, and detention following 

apprehension, and set forth the 

procedures and practices that the parties 

agreed should govern the INS’s 

discretionary decisions to release or 

detain minors and to whom they should 

or may be released. 

The FSA was originally set to expire 

within five years, but on December 7, 

2001, the Parties agreed to a termination 

date of ‘‘45 days following defendants’ 

publication of final regulations 

implementing this Agreement.’’ A copy 

of the FSA and the 2001 Stipulation is 

available in the docket for this 

rulemaking. The primary purpose of the 

regulations is to ‘‘implement[] the 

Agreement,’’ and in turn to terminate 

the FSA. 

3. Recent Court Orders 

a. Motion To Enforce I 

On January 26, 2004, Plaintiffs filed 

their first motion to enforce the 

agreement, alleging, among other things, 

that CBP and ICE: (1) Regularly failed to 

release class members 3 to caregivers 

other than parents when parents refuse 

to appear; (2) routinely failed to place 

detained class members in the least 

restrictive setting; (3) failed to provide 

class members adequate education and 

mental health services, and (4) exposed 

class members to dangerous and 

unhealthy conditions. Ultimately, after a 

lengthy discovery process in which the 

government provided Plaintiffs 

numerous documents related to the 

government’s compliance with the FSA, 

Plaintiffs filed a Notice of Withdrawal of 

Motion to Enforce Settlement on 

November 14, 2005. The court 

dismissed the matter on May 10, 2006. 

b. Motion To Enforce II 

On February 2, 2015, Plaintiffs filed a 

second motion to enforce the agreement, 

alleging that CBP and ICE were in 

violation of the FSA because: (1) ICE’s 

supposed no-release policy—i.e., an 

alleged policy of detaining all femaleheaded families, including children, for 

as long as it takes to determine whether 

they are entitled to remain in the United 

States—violated the FSA; (2) ICE’s 

routine confinement of class members 

in secure, unlicensed facilities breached 

the Agreement; and (3) CBP exposed 

class members to harsh and substandard 

conditions, in violation of the 

Agreement. 

On July 24, 2015, the district court 

granted Plaintiffs’ second motion to 

enforce and denied Defendant DHS’s 

contemporaneous motion to modify the 

agreement. Flores v. Johnson, 212 F. 

Supp. 3d 864 (C.D. Cal. 2015). The court 

found: (1) The FSA applied to all alien 

minors in government custody, 

including those accompanied by their 

parents or legal guardians; (2) ICE’s 

blanket no-release policy with respect to 

minors accompanied by their mothers 

was a material breach of the FSA; (3) the 

FSA requires Defendant DHS to release 

minors with their accompanying parent 

or legal guardian unless this would 

create a significant flight risk or a safety 

risk; (4) DHS housing minors in secure 

and non-licensed FRCs violated the 

FSA; and (5) CBP violated the FSA by 

holding minors and UACs in facilities 

that were not safe and sanitary. Id. 

On August 21, 2015, the court denied 

the Government’s motion to reconsider 

and issued a subsequent remedial order 

for DHS to implement six remedies. 

Flores v. Lynch, 212 F. Supp. 3d 907 

(C.D. Cal. 2015). In the decision, the 

court clarified that, as provided in FSA 

paragraph 12(A), in the event of an 

emergency or influx, DHS need not 

transfer minors to a ‘‘licensed program’’ 

pursuant to the 3- and 5-day 

requirements of paragraph 12(A), but 

must transfer such minors ‘‘as 

expeditiously as possible.’’ In the 

decision, the court referenced the 

Government’s assertion that DHS, on 

average, would detain minors who are 

not UACs for 20 days—the general 

length of time required to complete 

credible and reasonable fear processing 

at that time for aliens in expedited 

removal. The court agreed that if 20 

days was ‘‘as fast as [the Government] 

. . . can possibly go,’’ the Government’s 

practice of holding accompanied minors 

in its FRCs, even if not ‘‘licensed’’ and 

‘‘non-secure’’ per FSA paragraph 19, 

may be within the parameters of FSA 

paragraph 12(A). Id. at 914. In a 

decision issued on July 6, 2016, the 

Ninth Circuit agreed with the district 

court that during an emergency or 

influx, minors must be transferred ‘‘as 

expeditiously as possible’’ to a nonsecure, licensed facility. Flores v. Lynch, 

828 F.3d. 898, 902–03 (9th Cir. 2016). 

The Ninth Circuit affirmed the district 

court’s holding that the FSA 

‘‘unambiguously’’ applies to all alien 

minors and UACs in government 

custody 4 and concluded the district 

court did not abuse its discretion in 

denying the Government’s motion to 

modify the FSA. The Ninth Circuit, 

however, reversed the district court’s 

determination that the FSA required the 

release of accompanying parents. Id. 

c. Motion To Enforce III 

On May 17, 2016, plaintiffs filed a 

third motion to enforce the agreement, 

claiming that DHS continued to violate 

the agreement by: (1) Holding class 

members in CBP facilities that did not 

meet the requirements of the FSA; (2) 

failing to advise class members of their 

rights under the FSA; (3) making no 

efforts to release or reunify class 

members with family members; (4) 

holding class members routinely with 

unrelated adults; (5) detaining class 

members for weeks or months in secure, 

unlicensed facilities in violation of the 

FSA; and (6) interfering with class 

members’ right to counsel. The 

Government filed a response on June 3, 

2016. 

On June 27, 2017, the district court 

issued an opinion concluding that ICE 

had not complied with the FSA because 

it had failed to advise class members of 

their rights under the FSA, failed to 

make continuous efforts to release class 


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5The Department of Justice has not yet decided 

whether to appeal the July 30 order. 

6At the time of the publication of this proposed 

rule, the issue of family separation and 

reunification is the subject of litigation in multiple 

jurisdictions. This proposed rule is not intended to 

directly address matters related to that litigation. A 

significant purpose of the proposed rule with regard 

to accompanied minors is to allow decisions 

regarding the detention of families to be made 

together as a unit, under a single legal regime, and 

without having a disparate legal regime applicable 

to the parent versus the child. 

members, and failed to release class 

members as required by FSA paragraphs 

12(A) and 14. The Court also found that 

FRCs were unlicensed and secure. 

Flores v. Sessions, No. 2:85–cv–04544 

(C.D. Cal. June 27, 2017). The district 

court, however, rejected the claims that 

ICE had impermissibly detained class 

members with unrelated adults and 

interfered with class members’ right to 

counsel. 

The district court also concluded that 

CBP acted in violation of the FSA in the 

Rio Grande Valley Border Patrol Sector. 

The court pointed to allegations that 

CBP failed to provide class members 

adequate access to food and water, 

detained class members in conditions 

that were not safe and sanitary, and 

failed to keep the temperature of the 

holding cells within a reasonable range. 

The court ordered the appointment of a 

Juvenile Coordinator for ICE and CBP, 

responsible for monitoring the agencies’ 

compliance with the Agreement. The 

Government’s appeal of that decision 

remains pending. See Flores v. Sessions, 

No. 17–56297 (9th Cir.) (docketed Aug. 

28, 2017). On July 27, 2018, the district 

court ordered the appointment of an 

independent monitor to oversee 

compliance with the June 27, 2017 

Order. 

d. Motion To Enforce IV 

On August 12, 2016, Plaintiffs filed a 

fourth motion to enforce the agreement, 

claiming that ORR violated the 

agreement by failing to provide UACs in 

ORR custody with a bond 

redetermination hearing by an 

immigration judge. The Government 

argued that the HSA and the TVPRA 

effectively superseded the FSA’s bondhearing requirement with respect to 

UACs, that only HHS could determine 

the suitability of a sponsor (thus 

determining release), and that 

immigration judges lacked jurisdiction 

over UACs in ORR custody. The district 

court agreed that only HHS could 

determine the suitability of a sponsor, 

but disagreed that subsequent laws fully 

superseded the FSA. 

On January 20, 2017, the court found 

that HHS breached the FSA by denying 

UACs the right to a bond hearing as 

provided for in the FSA. Flores v. 

Lynch, No. 2:85–cv–04544, 2017 WL 

6049373 (C.D. Cal. Jan. 20, 2017). The 

Government appealed to the Ninth 

Circuit. On July 5, 2017, the Ninth 

Circuit affirmed the district court’s 

ruling. The Ninth Circuit reasoned that 

if Congress had intended to terminate 

the settlement agreement in whole or in 

part through passage of the HSA or 

TVPRA, it would have said so 

specifically. Flores v. Sessions, 862 F.3d 

863 (9th Cir. 2017). The Government did 

not seek further review of this decision. 

e. Motion To Enforce V 

On April 16, 2018, Plaintiffs filed a 

fifth motion to enforce the agreement, 

claiming ORR unlawfully denied class 

members licensed placements, 

unlawfully medicated youth without 

parental authorization, and 

peremptorily extended minors’ 

detention on suspicion that available 

custodians may be unfit. On July 30, 

2018, the district court issued an Order. 

Flores v. Sessions, 2:85–cv–04544– 

DMG–AGR (ECF No. 470, Jul. 30, 

2018).5 The Order discussed the Shiloh 

Residential Treatment Center and 

placement therein, as well as informed 

consent for psychotropic drugs in such 

Center; placement in secure facilities; 

notice of placement in secure and staffsecure facilities; Director-level review of 

children previously placed in secure or 

staff-secure facilities and other issues. 

Readers should refer to the full Order 

for details. 

f. Motion for Relief 

On June 21, 2018, in accordance with 

the President’s June 20, 2018, Executive 

Order ‘‘Affording Congress an 

Opportunity to Address Family 

Separation,’’ the Government sought 

limited emergency relief from two 

provisions of the FSA—the release 

provision of Paragraph 14, as well as the 

licensing requirements of Paragraph 19. 

This relief was sought in order to permit 

DHS to detain alien family units 

together for the pendency of their 

immigration proceedings. The court 

denied this motion on July 9, 2018. 

This Motion to Modify sought relief 

consistent with this proposed rule, 

although this rule includes some 

affirmative proposals (like the federallicensing regime) that were not at issue 

in that motion. For example, as 

discussed below, by creating a federal 

licensing scheme for FRCs, the proposed 

rule would eliminate a barrier to 

keeping family units in detention during 

their immigration proceedings, 

consistent with all applicable law while 

still providing similar substantive 

protections to minors.6

C. Basis and Purpose of Regulatory 

Action 

1. Need for Regulations Implementing 

the Relevant and Substantive Terms of 

the FSA 

Under the requirements of the FSA, 

when DHS apprehends an alien parent 

or legal guardian with his or her 

child(ren) either illegally entering the 

United States between the ports of entry 

or found inadmissible at a port of entry, 

it has, following initiation of removal 

proceedings, three primary options for 

purposes of immigration custody: (1) 

Parole all family members into the 

United States; (2) detain the parent(s) or 

legal guardian(s) and either release the 

juvenile to another parent or legal 

guardian or transfer them to HHS to be 

treated as an UAC; or (3) detain the 

family unit together by placing them at 

an appropriate FRC during their 

immigration proceedings. The practical 

implications of the FSA, including the 

lack of state licensing for FRCs, have 

effectively prevented the Government 

from using the third option for more 

than a limited period of time. This rule 

would, when finalized, eliminate that 

barrier and allow for the full range of 

options at each stage of proceedings. 

On June 20, 2018, the President 

issued Executive Order 13841 

specifying that ‘‘[i]t is . . . the policy of 

this Administration to maintain family 

unity, including by detaining alien 

families together where appropriate and 

consistent with law and available 

resources.’’ E.O. 13841 sec. 1, 83 FR 

29435. The President further provided 

that the Secretary of Homeland Security 

(Secretary), shall, to the extent 

permitted by law and subject to the 

availability of appropriations, maintain 

custody of alien families during the 

pendency of any . . . immigration 

proceedings involving their members.’’ 

Id. sec. 3. The President further directed 

agency components to make available 

additional facilities for housing families. 

Id. sec. 3(c), (d). And the President 

provided that the Attorney General 

‘‘shall, to the extent practicable, 

prioritize the adjudication of cases 

involving detained families.’’ Id. sec. 4. 

There are several advantages to 

maintaining family unity during 

immigration proceedings. Those include 

the interest in the child being with and 

under the considerate care of the parent, 

the strong interest parents have in 

caring for their children, the guidance 

parents can provide to children during 

immigration proceedings and the 

manner in which keeping families 

together facilitates communications 

among family members, the 

consolidation of the family members’ 


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7See https://www.cbp.gov/sites/default/files/ 

assets/documents/2017-Dec/BP%20Total

%20Monthly%20Family%20Units%20by%

20Sector%2C%20FY13-FY17.pdf (last visited 

August 17, 2018) See also https://www.cbp.gov/ 

newsroom/stats/sw-border-migration (last visited 

August 17, 2018). 

removal proceedings, and to facilitate 

the physical removal of a family 

together as a unit if immigration relief 

is unavailable. But the practical 

implications of the FSA, and in 

particular the lack of state licensing for 

FRCs and the release requirements for 

minors, have effectively prevented the 

Government from using family 

detention for more than a limited period 

of time, and in turn often led to the 

release of families. That combination of 

factors may create a powerful incentive 

for adults to bring juveniles on the 

dangerous journey to the United States 

and then put them in further danger by 

illegally crossing the United States 

border—in the hope, whether correct or 

not, that having a juvenile will result in 

an immediate release into the United 

States. At the same time, the second 

choice—that of separating family 

members so the adult may be held in 

detention pending immigration 

proceedings—is to be avoided when 

possible, and has generated significant 

litigation. See Ms. L v. ICE, No. 18–428 

(S.D. Cal.). 

This rule serves to clear the way for 

the sensible use of family residential 

centers when it is lawful and 

appropriate. In particular, it would 

create a federal licensing process to 

resolve the current problem caused by a 

state-licensing requirement that is illsuited to family detention, and it would 

allow for compatible treatment of a 

family unit in immigration custody and 

proceedings by eliminating barriers to 

that compatibility imposed by the FSA. 

Further, it would eliminate the 

disparate legal regime that currently 

applies to decisions to detain a family 

unit, with one regime applying to the 

minor (the FSA, including the statelicensing requirement and release 

provisions under FSA paragraph 14) 

and another regime applying to the 

parent (the existing statutes and 

regulations governing release on bond or 

parole under the relevant 

circumstances). That disparate regime 

creates problems for maintaining family 

unity while also enforcing the 

immigration laws. Instead, the proposed 

rule would ensure that a single regime 

applies to the family unit, namely, the 

existing statutes and regulations 

governing release on bond or parole. 

This rule would allow for detention at 

FRCs for the pendency of immigration 

proceedings (subject to all applicable 

statutes and regulations governing their 

detention or release) in order to permit 

families to be detained together and 

parents not be separated from their 

children. It is important that family 

detention be a viable option not only for 

the numerous benefits that family unity 

provides for both the family and the 

administration of the INA, but also due 

to the significant and ongoing influx of 

adults who have made the choice to 

enter the United States illegally with 

juveniles or make the dangerous 

overland journey to the border with 

juveniles, a practice that puts juveniles 

at significant risk of harm. The 

expectation that adults with juveniles 

will remain in the United States outside 

of immigration detention may 

incentivize these risky practices. 

In the summer of 2014, an 

unprecedented number of family units 

from Central America illegally entered 

or were found inadmissible to the 

United States. In Fiscal Year 2013, the 

total number of family units 

apprehended entering the United States 

illegally on the Southwest Border was 

14,855. By Fiscal Year 2014, that figure 

had increased to 68,445. See https://

www.cbp.gov/sites/default/files/assets/ 

documents/2017-Dec/BP%20Total

%20Monthly%20Family%20Units

%20by%20Sector%2C%20FY13- 

FY17.pdf. 

TABLE 1—FAMILY UNIT APPREHENSIONS AT THE SOUTHWEST BORDER

BY FISCAL YEAR 7

Fiscal Year 

Family unit 

apprehensions 

at the 

Southwest 

Border 

2013 ...................................... 14,855 

2014 ...................................... 68,445 

2015 ...................................... 39,838 

2016 ...................................... 77,674 

2017 ...................................... 75,622 

2018 * .................................... 77,802 

* Partial year data for FY 2018; does not include August and September. 

Prior to 2014, the only option 

available to the Government for the 

large majority of family units entering 

the United States was the first option 

described above—i.e., to issue the 

family a Notice to Appear and release 

the alien family to temporarily remain 

in the United States pending their 

removal proceedings. Thus, when an 

unprecedented number of families 

decided to undertake the dangerous 

journey to the United States in 2014, 

DHS officials faced an urgent 

humanitarian situation. DHS 

encountered numerous alien families 

and juveniles who were hungry, thirsty, 

exhausted, scared, vulnerable, and at 

times in need of medical attention, with 

some also having been beaten, starved, 

sexually assaulted or worse during their 

journey to the United States. 

DHS mounted a multi-pronged 

response to this situation. As one part 

of this response, DHS placed families at 

existing FRCs and oversaw the 

construction of appropriate facilities to 

detain family units together, in a safe 

and humane environment, during the 

pendency of their immigration 

proceedings, which typically involved 

expedited removal. Although it is 

difficult to definitively prove a causal 

link given the many factors that 

influence migration, DHS’s assessment 

is that this change helped stem the 

border crisis, as it correlated with a 

significant drop in family migration: 

Family unit apprehensions on the 

Southwest Border dropped from 68,445 

in Fiscal Year 2014 to 39,838 in Fiscal 

Year 2015. 

Although the border crisis prompted 

DHS to hold family units together, DHS 

quickly faced legal challenges asserting 

that the FSA applied to accompanied 

minors and that family detention did 

not comply with the provisions of the 

FSA. In July 2015, a federal court 

rejected the Government’s interpretation 

of the FSA to permit family residential 

centers, and declined to modify the FSA 

to allow DHS to address this significant 

influx of family units crossing the 

border and permit family detention. See 

Flores v. Lynch, 828 F.3d 898, 909–10 

(9th Cir. 2016). The Government had 

explained to the court that doing so 

would ‘‘mak[e] it impossible for ICE to 

house families at ICE [FRCs], and to 

instead require ICE to separate 

accompanied children from their 

parents or legal guardians.’’ Flores v. 

Lynch, No. 85–4544, Defendants’ 

Opposition to Motion to Enforce, ECF 

121 at 17 (C.D. Cal. Feb. 27, 2015). 

When the FSA was found to apply to 

accompanied minors—an interpretation 

with which the Government continues 

to disagree—the agencies faced new 

practical problems. The FSA requires 

DHS to transfer minors to a non-secure, 

licensed facility ‘‘as expeditiously as 

possible,’’ and further provides that a 

‘‘licensed’’ facility is one that is 

‘‘licensed by a State agency.’’ FSA 

paragraphs 6, 12(A). That prompted 

significant and ongoing litigation 

regarding the ability to obtain state 

licensing of FRCs, as many States did 

not have, and have not succeeded in 

putting in place, licensing schemes 

governing facilities that hold family 

units together. That litigation severely 

limited the ability to maintain detention 

of families together. Again, although it 


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8Current parole regulations address parole, 

including for juveniles in custody as well as parole 

for aliens subject to expedited removal. See 8 CFR 

212.5(b)(3) (parole for juveniles); 8 CFR 

235.3(b)(2)(iii), (b)(4)(ii) (limiting parole for those in 

expedited removal proceedings). While DHS 

proposes amendments to section 212.5(b) as a part 

of this regulation, this regulation is not intended to 

address or alter the standards contained in sections 

212.5(b) or 235.3(b). To the extent that paragraph 

14 of the FSA has been interpreted to require 

application of the juvenile parole regulation to 

release during expedited removal proceedings, see 

Flores v. Sessions, Order at 23–27 (June 27, 2017), 

this regulation is intended to permit detention in 

FRCs in lieu of release (except where parole is 

appropriate under 8 CFR 235.3(b)(2)(iii) or (b)(4)(ii)) 

in order to avoid the need to separate or release 

families in these circumstances. 

9See Detention and Release of Juveniles, 53 FR 

17449 (May 17, 1998). When published as a final 

rule, the provisions applying to the detention and 

release of juveniles were originally placed in 8 CFR 

242.24. After Congress passed IIRIRA, the former 

INS published a final rule updating several 

immigration-related provisions of the CFR and 

moved these provisions from section 242.24 of Title 

8 to § 236.3. See Inspection and Expedited Removal 

of Aliens; Detention and Removal of Aliens; 

Conduct of Removal Proceedings; Asylum 

proceedings, 62 FR 10312 (Mar. 6, 1997). 

10See, e.g., ICE, Family Residential Standards, 

https://www.ice.gov/detention-standards/familyresidential (last visited May 1, 2018); CBP, National 

Standards on Transport, Escort, Detention, and 

Search (Oct. 2015), https://www.cbp.gov/sites/ 

default/files/assets/documents/2017-Sep/ 

CBP%20TEDS%20Policy%20Oct2015.pdf (last 

visited May 1, 2018). 

is difficult to definitively prove the 

causal link, DHS’s assessment is that the 

link is real, as those limitations 

correlated with a sharp increase in 

family migration: The number of family 

unit apprehensions by CBP again 

spiked—from 39,838 in Fiscal Year 2015 

to the highest level ever, 77,674 in 

Fiscal Year 2016. The number of such 

apprehensions along the Southwest 

Border has continued to rise, and has 

now reached 77,802 in Fiscal Year 2018, 

with two months remaining in the fiscal 

year and a rate of nearly 10,000 per 

month for the past four months. See 

Southwest Border Migration 2018, 

https://www.cbp.gov/newsroom/stats/ 

sw-border-migration. 

As long as the licensing must come 

from a state specifically (rather than 

from the federal government), DHS’s 

ability to effectively use family 

detention is limited. A federal program 

(especially immigration enforcement) 

that the Constitution and Congress 

commit to federal discretion should not 

depend on state licensing, particularly 

when a well-established state licensing 

scheme does not already exist. In order 

to avoid separating family units, DHS 

needs to release adult family members 

in cases where detention would 

otherwise be mandatory and DHS 

determines parole is not appropriate, or 

in cases where DHS and/or immigration 

courts believe detention of the parent is 

needed to ensure appearance at future 

removal proceedings or to prevent 

danger to the community.8 Because of 

ongoing litigation concerning state 

licensure for FRCs, ICE rarely is able to 

hold family units for longer than 

approximately 20 days. The result is 

that many families are released in the 

interior of the United States. While 

statistics specific to family units have 

not been compiled, the reality is that a 

significant number of aliens who are not 

in detention either fail to appear at the 

required proceedings or never actually 

seek asylum relief, thus remaining 

illegally in the United States. See 

https://www.justice.gov/eoir/file/ 

1083096/download (in FY 2018 to date, 

26 percent of case completions for 

individual case completions are in 

absentia orders, and 53 percent of case 

completions for unaccompanied minors 

are in absentia orders). 

As described above, there have been 

several important changes in law and 

circumstance since FSA was executed: 

(1) A significantly changed agency 

structure addressing the care and 

custody of juveniles, including the 

development of FRCs that provide 

appropriate treatment for minors while 

allowing them to be held together with 

their families; (2) a new statutory 

framework that governs the treatment of 

UACs; (3) significant increases in the 

number of families and UACs crossing 

the border since 1997, thus affecting 

immigration enforcement priorities and 

national security; and (4) further 

recognition of the importance of keeping 

families together during immigration 

proceedings when appropriate and the 

legal and practical implications of not 

providing uniform proceedings for 

family units in these circumstances. The 

agencies have thus determined that it is 

necessary to put into place regulations 

that comply with the relevant and 

substantive terms of the FSA regarding 

the conditions for custodial settings for 

minors, but, through federal licensing, 

will provide the flexibility necessary to 

protect the public safety and enforce the 

immigration laws given current 

challenges that did not exist when the 

FSA was executed. This proposed rule 

will provide DHS with the option of 

keeping families who must or should be 

detained together at appropriately 

licensed FRCs for the time needed to 

complete immigration proceedings, 

subject to the sound implementation of 

existing statutes and regulations 

governing release on parole or bond. 

2. Purpose of the Regulations 

The primary purpose of this action is 

to promulgate regulations that would 

ultimately lead to the termination of the 

FSA, as provided for in FSA paragraph 

40. This proposed rule would 

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. The 

rule would also make some 

modifications to the literal text of the 

FSA, but while providing similar 

substantive protections to juveniles. For 

example, the rule would allow for 

detention of families together in 

federally-licensed programs (rather than 

facilities licensed specifically by a 

state). States generally do not have 

licensing schemes for family residential 

centers. Thus, the literal text of the FSA 

currently imposes a limitation on DHS’s 

ability to detain family units together in 

a FRC during their immigration 

proceedings, consistent with applicable 

law. The federal licensing scheme in 

turn would provide similar substantive 

protections regarding the conditions of 

such facilities, and thus implement the 

underlying purpose of the statelicensing requirement. 

This rule is proposed under the FSA’s 

guiding principle that the Government 

treats, and shall continue to treat, all 

juveniles in its custody with dignity, 

respect, and special concern for their 

particular vulnerability as minors. 

The current DHS regulations on the 

detention and release of aliens under 

the age of 18 found at 8 CFR 236.3 have 

not been substantively updated since 

their promulgation in 1988.9 DHS 

therefore proposes to revise 8 CFR 236.3 

to promulgate the relevant and 

substantive terms of the FSA as 

regulations. In addition, there are 

currently no HHS regulations on this 

topic. HHS proposes a new 45 CFR part 

410 for the same reason. 

As noted, the proposed regulations 

would implement the relevant and 

substantive terms of the FSA and related 

statutory provisions. Separate from the 

FSA, DHS has over time developed 

various policies and other subregulatory documents that address 

issues related to DHS custody of minor 

aliens and UACs.10 In considering these 

proposed regulations, DHS reviewed 

such policies, and determined that the 

proposed regulations are compatible 

with them. Current policies on the 

detention, apprehension, and 

transportation of minors and UACs 

generally would not, therefore, need to 

be altered to bring them into conformity 

with the proposed rule. This rule is not, 

however, intended to displace or 

otherwise codify such policies and 

procedures. 

Finally, this proposed rule excludes 

those provisions of the FSA that are 


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11For instance, paragraphs 32(A), (B), and (D), 

and 33 of the FSA grants Flores class counsel 

special access to covered minors and to certain 

facilities that hold such minors; it is unnecessary 

to codify these provisions in regulation. Similarly, 

paragraphs 29 to 31 include special reporting 

requirements with respect to class counsel and the 

supervising court; reporting to these entities would 

be unnecessary following termination of the FSA. 

12See further explanation infra under discussion 

of proposed 236.3(g), including note 20. 

relevant solely by virtue of the FSA’s 

existence as a settlement agreement. For 

instance, the FSA contains a number of 

special provisions that relate 

specifically to class counsel and the 

supervising court with respect to the 

Departments’ compliance with the FSA. 

Following termination of the FSA, such 

provisions will no longer be necessary, 

because compliance with the published 

regulations will replace compliance 

with the settlement agreement. As a 

result, they are not included in this 

proposed rule.11

V. Discussion of Elements of the 

Proposed Rule 

As stated above, the purpose of this 

rule is to terminate the FSA by to 

promulgating regulations that 

implement it, with minor modifications 

to reflect changes in governing law and 

the operational realities on the ground. 

These proposed regulations, therefore, 

largely replicate the language of the FSA 

for publication in the Code of Federal 

Regulations. The Departments propose 

some modifications to the literal text of 

the FSA, however, to ensure the 

Government continues to comply with 

the underlying goals of the FSA in a 

legal and operational environment that 

has significantly changed since the FSA 

was signed over 20 years ago. 

The Departments have different 

responsibilities vis-a`-vis 

implementation of the FSA, and so each 

Department’s proposed regulatory text 

seeks to address these various 

responsibilities. DHS’s proposed 

regulations seek to establish procedures 

for the apprehension, processing, care, 

custody, and release of alien minors, 

consistent with its obligations under the 

FSA. While the following sections 

explain why the proposed regulations 

do not adopt the literal text of the FSA 

in certain circumstances, one notable 

change is the proposal for an alternative 

licensing process that would allow FRCs 

to be considered ‘‘licensed programs’’ 

under FSA paragraph 6, and thus 

suitable for the detention of non-UAC 

minors, along with their accompanying 

parents or legal guardians, for longer 

periods of time than they are currently 

used. DHS proposes these changes to 

allow the Department to fully and 

consistently apply the law to all aliens 

who are subject to detention, so that 

aliens do not have the opportunity to 

abscond from DHS custody simply 

because they were encountered with 

children. 

HHS’s proposed regulations seek to 

establish procedures for the processing, 

care, custody, and release of certain 

UACs that by law are subject to the care 

and custody of ORR. 

A. DHS Regulations 

DHS proposes to make edits to current 

section 212.5 primarily to ensure that 

the terminology used in that section is 

consistent with the language used in the 

additional proposed amendments 

codifying the FSA, explained below. 

DHS proposes to remove the term 

‘‘juvenile’’ from 8 CFR 212.5(b) and 

replace it with ‘‘minor in DHS custody,’’ 

as the proposed amendments to 8 CFR 

236.3 remove the term ‘‘juvenile,’’ from 

its definitions section. 

DHS also proposes to remove the 

words ‘‘relative,’’ ‘‘brother,’’ ‘‘sister,’’ 

‘‘aunt,’’ ‘‘uncle,’’ ‘‘or grandparent,’’ and 

replace these terms with ‘‘parent or legal 

guardian.’’ Given that, pursuant to the 

HSA and TVPRA, DHS does not have 

the legal authority to release a juvenile 

in its custody to anyone other than a 

parent or legal guardian,12 allowing 

these terms to remain in the regulatory 

text improperly implies that DHS will 

engage in an activity not authorized by 

statute, i.e. releasing a minor on parole 

into the custody of someone other than 

a parent or legal guardian. Further, DHS 

is proposing to remove paragraph 

(b)(3)(iii) in its entirety due to the same 

constraints on its legal authority to 

release minors to individuals who are 

not parents or legal guardians. DHS is 

also proposing to replace the term 

‘‘Director, Deportation and Removal,’’ 

with ‘‘Executive Assistant Director, 

Enforcement and Removal Operations,’’ 

to reflect the current title of the position 

used within DHS. 

DHS is also proposing to remove the 

cross-reference to section 235.3(b) as it 

currently appears in section 212.5(b), to 

eliminate an ambiguity and to codify its 

longstanding understanding of how 

certain provisions in section 235.3(b) 

relating to parole of aliens in expedited 

removal proceedings apply to minors. In 

particular, eliminating that cross 

reference would make it clear that the 

provisions in section 235.3(b) governing 

parole of an aliens in expedited removal 

apply to all such aliens, and not merely 

adults. The current cross-reference to 

section 235.3(b) is confusing, however, 

because it suggests that the more 

flexible standard in section 212.5(b) 

might override those provisions when a 

minor is in expedited removal. DHS 

disagrees with that interpretation of its 

current regulations, which, among other 

things, is in tension with the text of the 

relevant statutory provision. See 8 

U.S.C. 1225(b)(1)(B)(iii)(IV) (‘‘Any alien 

subject to [expedited removal] shall be 

detained pending a final determination 

of credible fear of persecution and, if 

found not to have such a fear, until 

removed.’’). DHS is accordingly 

amending section 212.5(b) to codify its 

understanding and to eliminate the 

ambiguity and any potential tension 

with the statute. This change is 

discussed more fully below.’’ DHS 

proposes to revise its current regulations 

on the detention and release of minor 

aliens by replacing section 236.3 in its 

entirety. Proposed paragraph 236.3(a)(1) 

codifies the FSA’s general policy 

statement, found in paragraph 11 of the 

FSA, that minors and UACs in DHS 

custody shall be treated with dignity, 

respect, and special concern for their 

particular vulnerability. 

Current section 236.3 on the 

‘‘Detention and release of juveniles’’ is 

silent with respect to whether its 

provisions apply to aliens detained 

under mandatory or discretionary legal 

authorities. This distinction is often 

meaningful in immigration law because 

the authority under which aliens are 

detained may dictate which regulations 

apply to those detained aliens. 

However, the FSA does not distinguish 

the applicability of its provisions as 

between aliens held under mandatory or 

discretionary legal authorities. Proposed 

§ 236.3(a)(2), therefore, provides that the 

provisions of the section apply equally 

to those minors who are subject to 

mandatory detention as those subject to 

discretionary detention, to the extent 

authorized by law. 

Proposed 8 CFR 236.3(b)—Definitions 

The current regulations at section 

236.3(a) contain a single definition of 

the term ‘‘juvenile,’’ which is defined as 

any alien under the age of 18. The FSA 

does not use the term ‘‘juvenile,’’ but it 

contains several other terms of art that 

must be defined in DHS regulations to 

parallel the terms of the agreement. This 

proposed rule, therefore, removes the 

term ‘‘juvenile’’ from the definitions in 

section 236.3 and adds several other 

definitions that are either explicitly 

written into the FSA or are necessary to 

understanding the FSA’s provisions, 

given the changes in law that have 

occurred since the FSA’s signing. 

Minor and UAC. Proposed § 236.3(b) 

removes the definition of ‘‘juvenile,’’ 

because the term, defined as any alien 

under the age of 18, is too broad to be 


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a useful definition for the purposes of 

this proposed rule. Instead, proposed 

§ 236.3(b) replaces the term ‘‘juvenile’’ 

with two definitions: ‘‘minor,’’ as it is 

defined in the FSA, and unaccompanied 

alien child (UAC), as it is defined in 6 

U.S.C. 279(g)(2). The distinction 

between these two groups of juveniles 

became legally relevant for DHS’s 

actions because the TVPRA authorizes 

only ORR to be responsible for the care 

and custody of UACs. See 6 U.S.C. 

279(b)(1); 8 U.S.C. 1232(b)(1). 

The definitions of minor and UAC are 

not mutually exclusive, because 

although most UACs will also meet the 

definition of minor, some will not. For 

instance, an alien juvenile who has been 

legally emancipated does not meet the 

definition of a minor as set out in the 

FSA, so the provisions of this proposed 

rule would not apply to that juvenile. 

The definition of UAC, however, does 

not exclude emancipated juveniles. 

Thus, if an immigration officer 

encounters any alien juvenile 

(regardless of whether such juvenile has 

been emancipated) who has no lawful 

immigration status, has not attained 18 

years of age, and has no parent or legal 

guardian present in the United States or 

no parent or legal guardian is available 

to provide care and physical custody for 

that juvenile, the juvenile meets the 

definition of a UAC, and the 

immigration officer must transfer the 

juvenile to HHS as set forth under this 

rule. While the proposed rule does not 

include a definition of juvenile, this 

preamble uses the term juvenile to mean 

any alien under the age of 18. 

Emergency and Influx. The FSA also 

includes definitions of ‘‘emergency’’ 

and ‘‘influx,’’ to explain the 

circumstances under which the FSA 

permits the Government more than 

three or five days to transfer juveniles to 

licensed programs. The proposed rule 

would add definitions of both 

‘‘emergency’’ and ‘‘influx’’ to the 

regulations in the definitions section at 

236.3(b), capturing the relevant and 

substantive terms of paragraph 12(B) of 

the FSA. The proposed definition of 

emergency largely tracks the existing 

text of the FSA, except that it reflects 

DHS’s recognition that emergencies may 

not only delay placement of minors, but 

could also delay compliance with other 

provisions of this proposed rule, or 

excuse noncompliance on a temporary 

basis. For example, access to a snack or 

meal may be delayed if a minor is being 

transported from a facility in the path of 

a major hurricane to another facility in 

a safer location and that transportation 

happens during a time when the minor 

would have access to a snack or meal. 

Once at a safe location or the emergency 

otherwise abates, the schedule would 

return to normal for those minors. 

Under current procedures, the 

disruption of the scheduled items due to 

the emergency, and the cause of the 

delay, would be noted in the applicable 

system of records for those minors who 

were impacted. 

The impact, severity, and timing of a 

given emergency situation dictate the 

operational feasibility of providing 

certain items to minors, and thus the 

regulations cannot contain every 

possible reality DHS will face. Thus, the 

definition of ‘‘emergency’’ is flexible 

and designed to cover a wide range of 

possible emergencies. 

The FSA defines an influx as a 

situation where legacy ‘‘INS has, at any 

given time, more than 130 minors 

eligible for placement in a licensed 

program under Paragraph 19, including 

those who have been so placed or are 

awaiting such placement.’’ Accordingly, 

as proposed, DHS would adopt this 

definition of ‘‘influx’’ without change, 

except to reflect the transfer of 

responsibilities from legacy INS to DHS 

and ORR, and to reflect that DHS 

maintains custody of minors, as defined 

in this section, and, for the short period 

pending their transfer to ORR, UACs. 

However, DHS regularly has more 

than 130 minors and UACs in custody 

who are eligible for placement in a 

licensed program, and for years has 

been operating at the current FSA 

definition of ‘‘influx.’’ DHS nonetheless 

believes that this defined term 

continues to be useful in the context in 

which it is used. As reflected in the 

discussion of proposed § 236.3(e) below, 

the main implication of the threshold 

for an ‘‘influx’’ is that in general, under 

the FSA, DHS is required to transfer 

non-UAC minors to licensed facilities 

‘‘as expeditiously as possible’’ rather 

than within either a 3- or a 5-day 

timeframe, because DHS is currently 

operating under an influx. Notably, the 

FSA’s transfer timeframes no longer 

control for DHS operations with respect 

to UACs—the TVPRA requires that 

UACs be transferred out of DHS custody 

within 72 hours of determining that the 

alien is a UAC, absent exceptional 

circumstances. As a result, although the 

number of UACs in custody could 

impact whether DHS is operating under 

an ‘‘influx,’’ the transfer of UACs to 

ORR remains governed by the 

requirements of the TVPRA at all times. 

Given current operational realities, the 

‘‘as expeditiously as possible’’ 

timeframe contained in the FSA remains 

appropriate and consistent with DHS’s 

goal to expeditiously transfer minors 

who are not UACs. DHS also notes that 

even under this standard, i.e., even in 

current ‘‘influx’’ conditions, CBP 

generally transfers minors who are not 

UACs out of its facilities within 3 to 5 

days. 

DHS nonetheless welcomes public 

comment on whether it would be 

appropriate to revise the definition of 

influx to better reflect current 

operational realities. For instance, DHS 

could define an influx as a situation in 

which DHS determines that 

significantly more minors or UACs are 

awaiting transfer than facility space is 

available to accommodate them, which 

prevents or delays timely transport or 

placement of minors or impacts other 

conditions provided by the regulations. 

This definition may effectively codify 

the relevant and substantive terms of the 

FSA in today’s context. It would also 

allow for flexibility across the national 

operations of DHS, without imposing a 

hard numerical trigger for when the 

definition of ‘‘influx’’ applies. Under 

this option, DHS would not be operating 

under an ‘‘influx’’ as a steady state, as 

the FSA’s definition of influx currently 

requires; instead, an influx would only 

exist when there is a significant number 

of minors or UACs compared to 

available bed space in licensed 

facilities, and that the surrounding 

circumstances prevent or delay the 

timely transport or placement of minors 

or impact other conditions provided by 

the regulations. A single factor alone 

would not trigger such a provision. 

Licensed Facility and Non-Secure. 

Paragraph 6 of the FSA defines 

‘‘licensed program’’ as a program, 

agency, or organization that is ‘‘licensed 

by a State agency to provide residential, 

group, or foster care services for 

dependent children.’’ Under paragraph 

6, a ‘‘licensed program’’ as used in the 

agreement must generally be ‘‘nonsecure,’’ except in certain cases for 

special needs minors. The proposed rule 

in section 236.3(b)(9) & (b)(11) includes 

definitions of ‘‘licensed facility’’ and 

‘‘non-secure’’ to conform as closely as 

possible to the terms and purpose of the 

FSA while responding to operational 

realities of ICE’s temporary detention of 

minors. To parallel the provisions of 

FSA paragraph 6, DHS is proposing that 

facilities that temporarily detain minors 

obtain licensing where appropriate 

licenses are available from a state, 

county, or municipality in which the 

facility is located. 

However, most states do not offer 

licensing for facilities like these FRCs, 

i.e., locations that house minors together 

with their parents or legal guardians. 

And those states that have previously 

offered licensing for FRCs have had 

their licensing schemes challenged (and 

in at least one case invalidated) through 


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13See, e.g., Grassroots Leadership, Inc. v. Tex. 

Dep’t of Family and Protective Servs., No. D–1–GN– 

15–004336 (Tex. Dist. Ct. amended final judgment 

Dec. 2, 2016) (finding regulatory scheme for FRCs 

invalid); Commonwealth of Pa., Dep’t of Human 

Servs., Adjudication and Order, Pa. Dep’t of Human 

Servs., Bureau of Hearings and Appeals, BHA 

Docket No. 061–16–0003 (Apr. 20, 2017) (ordering 

the Pennsylvania Department of Human Services to 

rescind its revocation of the license for Berks). 

14See Pa. Code 3800.5 (describing ‘‘secure care’’ 

as that which is provided in a 24-hour living setting 

for delinquent children from which ‘‘voluntary 

egress’’ is prohibited from the building through 

internal or exterior locks or from the premises 

through secure, perimeter fencing). DHS chose to 

use Pennsylvania’s definition as a starting point for 

this proposed definition because of the three family 

residential centers (FRCs) currently in operation, 

the facility located in Berks County, PA, is the 

longest operating of the FRCs. 

15The FSA’s definition of ‘‘escape-risk’’ allows 

consideration of, inter alia, whether ‘‘the minor has 

previously absconded or attempted to abscond from 

INS custody.’’ This proposed rule would 

specifically identify absconding from any federal or 

state custody as a relevant factor, not just the 

custody of INS or its successor agencies. This 

change is consistent with the FSA, which provides 

only a non-exhaustive list of considerations. 

litigation.13 That has imposed a barrier 

to the continued use of FRCs: It is 

difficult to continue to detain a family 

in a state-licensed facility, so continued 

application of a state-licensing 

requirement can effectively require DHS 

to release children (but not their 

parents) from the FRC. The proposed 

rule would eliminate that barrier to the 

continued use of FRCs by creating an 

alternative federal licensing scheme for 

such detention. The goal is to provide 

materially identical assurances about 

the conditions of confinement at that 

facility, and thus to implement the 

underlying purpose of the FSA’s 

licensing requirement. It would in turn 

allow decisions regarding the detention 

of families to be made together as a unit, 

under a single legal regime (the 

background rules regarding detention 

and release), rather than under two 

different regimes (one applicable to the 

parent and another to the child). 

Specifically, DHS proposes that if no 

such licensing scheme is available in a 

given jurisdiction, a facility will be 

considered licensed if DHS employs an 

outside entity to ensure that the facility 

complies with family residential 

standards established by ICE. This 

alternative licensing process is being 

proposed to enable DHS to house 

minors together with their parents or 

legal guardians in FRCs, subject to 

appropriate standards and oversight, 

even in jurisdictions in which an 

applicable licensing regime is 

unavailable. By providing an alternative 

to state licensure where such licensure 

is unavailable, DHS would 

appropriately preserve its ability to 

detain minors together with their 

parents or legal guardians throughout 

the removal process, if DHS decides, 

consistent with the standards in the 

proposed rule and applicable statutes 

and regulations, that it is necessary or 

appropriate to maintain custody for 

more than a brief period. Moreover, the 

alternative federal licensing scheme 

would provide effectively the same 

substantive protections that the statelicensing requirement exists to provide, 

and accordingly fulfill the underlying 

purpose of the state-licensing 

requirement under the FSA. And by 

requiring DHS to hire an auditor to 

ensure compliance with ICE’s detention 

standards, DHS’s alternative licensing 

process would mirror analogous state 

licensure processes for detention centers 

and achieve the goals of state licensure 

by providing third-party oversight of a 

facility’s compliance with an 

established set of standards. 

Finally, while the FSA uses the term 

‘‘non-secure,’’ as a part of the definition 

of a licensed program, the FSA does not 

define this term. The proposed rule 

provides a definition of non-secure to 

provide clarity on the use of this term 

in the immigration detention context. 

Like the availability of a license for 

FRCs, the definition of a non-secure 

facility may vary by state or locality. 

Accordingly, DHS proposes that a 

facility will be deemed non-secure if it 

meets its state’s or locality’s definition, 

but if no such definition is provided by 

the state or locality, the proposed rule 

provides that a facility will be deemed 

non-secure if it meets an alternative 

definition derived from Pennsylvania’s 

definition of secure care.14

Other definitions. The FSA also 

contains definitions of the terms 

‘‘special needs minor’’ and ‘‘escaperisk,’’ which DHS proposes to adopt.15

DHS does not propose to adopt the 

FSA’s term ‘‘medium security facility’’ 

because DHS does not maintain any 

medium security facilities for the 

temporary detention of minors, and the 

definition is now unnecessary. The 

proposed rule does, however, add 

definitions of the terms ‘‘custody,’’ 

‘‘family unit,’’ and ‘‘family residential 

center’’ because the enactment of the 

TVPRA and current DHS detention 

practices require the use of these terms 

to accurately describe the requirements 

and processes necessary in the 

apprehension, processing, care, and 

custody of alien juveniles. 

Proposed 8 CFR 236.3(c)—Age 

Determination 

Determining the age of an alien is not 

discussed in the current regulations, but 

is essential for DHS to apply the 

appropriate provisions of the FSA and 

the TVPRA to an alien in its custody. 

Paragraph 13 of the FSA provides a 

‘‘reasonable person’’ standard for 

determining whether a detained alien is 

an adult or a minor. Paragraph 13 also 

allows medical or dental examinations 

by a medical professional, or other 

appropriate procedures, for purposes of 

age verification. Proposed 8 CFR 

236.3(c) would incorporate the FSA’s 

‘‘reasonable person’’ standard and the 

FSA’s standards with respect to medical 

and dental examinations, and would 

also be consistent with the TVPRA’s 

standards for determining whether an 

alien is under or over the age of 18. The 

proposed rule would add that age 

determinations must be based on the 

totality of the evidence and 

circumstances. 

Proposed 8 CFR 236.3(d)—Determining 

Whether an Alien Is a UAC 

The current regulations make no 

distinction between UACs and other 

minors. While no distinction is 

included in the language of the FSA, 

such a distinction is made necessary by 

the HSA and TVPRA, as explained 

above. Accordingly, proposed 8 CFR 

236.3(d) would explain when DHS 

makes a determination whether an alien 

juvenile is a UAC. Under the proposed 

rule, immigration officers will make a 

determination of whether an alien meets 

the definition of a UAC each time they 

encounter the alien. Therefore, even 

though an alien may have been 

previously determined to be a UAC, the 

alien may no longer meet the statutory 

definition of a UAC if the alien reaches 

the age of 18, acquires legal status, or if 

a parent or legal guardian is available in 

the United States to provide care and 

physical custody. The proposed 

paragraph also highlights that, once an 

alien no longer meets the definition of 

a UAC, the legal protections afforded 

only to UACs under the law cease to 

apply. 

Proposed 8 CFR 236.3(e)—Transfer of 

Minors Who Are Not UACs From One 

Facility to Another 

This section of the proposed rule 

would address the FSA’s requirement 

that minors and UACs be transferred to 

and placed in ‘‘licensed programs.’’ 

Paragraph 12(A) of the FSA requires 

DHS to place in a licensed program 

those minors who are not released. As 

mentioned above, the FSA defines a 

licensed program as a program, agency, 

or organization that is ‘‘licensed by a 

State agency to provide residential, 

group, or foster care services for 

dependent children.’’ Facilities operated 

by licensed programs must be nonVerDate Sep<11>2014 18:16 Sep 06, 2018 Jkt 244001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\07SEP2.SGM 07SEP2

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16The Flores district court has held that ICE FRCs 

are secure; the Government has appealed that 

decision. See Flores v. Sessions, No. 2:85–cv–04544 

(C.D. Cal. June 27, 2017), appeal pending, No. 17– 

56297 (9th Cir.) (docketed Aug. 28, 2017). 

17The FSA includes ‘‘impractical’’ but not 

‘‘unavailable.’’ DHS considers the addition of ‘‘or 

unavailable’’ to be a clarification of the current 

standard, and not a substantive change. 

secure, unless it is appropriate to house 

such minors in secure detention 

facilities. Currently, the only non-secure 

facilities in which ICE detains minors 

who are not UACs are the FRCs.16 When 

appropriate, ICE places minors in FRCs 

together with their parents or legal 

guardians until ICE can release the 

minor. 

As discussed above in connection 

with the proposed definition of 

‘‘licensed facility’’ in proposed 

§ 236.3(b)(9), this proposed rule would 

create an alternative system of 

regulating facilities, in lieu of state 

licensure. This system would allow ICE 

to make decisions regarding the 

detention of families together as a unit, 

under the applicable legal standard, 

while fulfilling the goals of state 

licensure by ensuring independent 

oversight of FRCs. 

FSA paragraph 12(A) provides that 

legacy ‘‘INS will transfer a minor from 

a placement under this paragraph to a 

placement under Paragraph 19 [i.e., a 

licensed program] . . . within three (3) 

days, if the minor was apprehended in 

an INS district in which a licensed 

program is located and has space 

available; or (ii) within five (5) days in 

all other cases; except’’ in certain 

circumstances, including ‘‘in the event 

of an emergency or influx of minors into 

the United States, in which case the INS 

shall place all minors pursuant to 

Paragraph 19 as expeditiously as 

possible.’’ As noted in the discussion 

above regarding the FSA’s definition of 

‘‘influx,’’ DHS has continuously been 

dealing with an ‘‘influx’’ of minors, as 

that term is defined in the FSA. 

Accordingly, the proposed transfer 

provision in section 236.3(e) would 

make ‘‘as expeditiously as possible’’ the 

default for transferring minors who are 

not UACs to a licensed facility, but 

notes that if an emergency or influx, as 

defined in the regulations, does not 

exist, the FSA’s ‘‘default’’ 3- and 5-day 

timeframes apply. 

The revised order of the text (i.e., 

making clear that in general the ‘‘as 

expeditiously as possible’’ standard 

applies, except where an emergency or 

influx does not exist) is consistent with 

the goal of DHS operational offices to 

transfer all minors who are not UACs as 

expeditiously as possible, given 

operational realities. This proposed 

amendment adds clarity, but does not 

change the timeframes that have applied 

with respect to non-UAC minors for two 

decades under the FSA. 

This provision would not retain two 

additional exceptions to the 3-day 

transfer timeframe. First, the exception 

at Paragraph 12(A)(2), requiring transfer 

in the timeline provided by ‘‘any court 

decree or court-approved settlement,’’ is 

not needed, as a court order would 

govern in any event. Second, the 

exception at paragraph 12(A)(4) of the 

FSA, allowing transfer within 5 days 

instead of 3 days in cases involving 

transport from remote areas or where an 

alien speaks an ‘‘unusual’’ language that 

requires the Government to locate an 

interpreter, is not included. DHS has 

matured its operations such that these 

factors no longer materially delay 

transfer. 

Proposed § 236.3(e) would apply only 

to the transfer of non-UAC minors to 

licensed facilities because, following 

passage of the TVPRA, DHS transfers to 

ORR UACs who are not able to 

withdraw their application for 

admission in accordance with that Act. 

See 8 U.S.C. 1232(a)–(b). Therefore, the 

timeline of the transfer of UACs from 

DHS to HHS is governed exclusively by 

the TVPRA. 

Finally, under the proposed rule, as 

under FSA paragraph 12(c), DHS would 

continue to maintain a written plan 

describing the reasonable efforts it will 

take to place all minors who are not 

UACs as expeditiously as possible 

pursuant to FSA paragraph 12(C). (This 

would include placement in a federallylicensed FRC.) CBP and ICE have 

maintained such a plan through internal 

guidance for law enforcement 

operations. 

Proposed 8 CFR 236.3(f)—Transfer of 

UACs From DHS to ORR 

The current regulations also do not 

address the transfer of UACs from DHS 

to ORR care and custody under the 

TVPRA. The FSA is also silent on this 

topic because the FSA does not 

distinguish between minors and UACs. 

Given the passage of the TVPRA and its 

specific requirements related to the 

transfer of UACs, the proposed 

regulations at section 236.3(f) track the 

TVPRA requirements. Specifically, the 

proposed regulations at section 236.3(f) 

prescribe procedures for transferring 

UACs to the care and custody of ORR 

within 72 hours (absent exceptional 

circumstances) of determining that an 

alien is a UAC. See section 235(b)(3) of 

the TVPRA, 8 U.S.C. 1232(b)(3). Section 

236.3(f) would also reflect the general 

requirement under section 235(b)(2) (8 

U.S.C. 1232(b)(2)) that DHS notify ORR 

within 48 hours that an apprehended 

individual is a UAC. While these 

timelines differ from those provided in 

the FSA, and differ from those 

applicable to minors who are not UACs, 

as described in paragraph 236.3(e), these 

timelines implement DHS’s specific 

requirements applicable to UACs, as 

provided in the TVPRA. 

Pursuant to the FSA, UACs, like 

accompanied minors, must be 

transferred to a licensed program within 

the 3- and 5-day timeframes provided by 

Paragraph 12(A), or, in an emergency or 

influx, ‘‘as expeditiously as possible.’’ 

The TVPRA timeline for the transfer of 

UACs to HHS does not address the 

requirements of Paragraph 12(A) with 

respect to the transfer of UACs to 

licensed programs. However, HHS now 

has the authority to provide care and 

custody of UACs referred to it, and thus, 

HHS ensures that a referred UAC is 

placed in an appropriate licensed 

program, when required under the 

TVPRA and the FSA. See 8 U.S.C. 

1232(c)(2)(A) (requiring HHS to 

‘‘promptly’’ place UACs ‘‘in the least 

restrictive setting that is in the best 

interest of the child’’). Accordingly, 

HHS has addressed this requirement in 

its proposed rule. In this rule, DHS 

addresses only the transfer of UACs to 

HHS, which is governed exclusively by 

the TVPRA. 

The current regulations do not speak 

to the necessary conditions during the 

transfer of UACs between DHS and HHS 

facilities, although such conditions are 

addressed by paragraph 25 of the FSA. 

Consistent with paragraph 25 of the 

FSA, the proposed regulations stipulate 

that UACs will not be transported with 

unrelated detained adults except upon 

initial apprehension when being 

transferred to a DHS facility, or if 

separate transportation is impractical or 

unavailable.17 In such cases, 

precautions will be taken to ensure the 

safety, security, and well-being of the 

UAC. 

For the safety and security of UACs 

and whenever operationally feasible, 

ICE and CBP currently make every 

attempt to transport and hold UACs 

separately from unrelated adults. As an 

example, CBP’s U.S. Border Patrol 

(USBP) strives to transport UACs and 

unrelated adults in separate vehicles. 

However, given the various 

environments in which USBP operates, 

such as remote desert locations, separate 

transportation for UACs from place of 

apprehension to a USBP station is not 

always feasible or practical. In these 

cases, USBP strives to transport the 

UAC in a manner where she or he can 

be monitored. There are numerous 


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factors that dictate the way in which a 

UAC will be transported with unrelated 

adults. However, at a minimum CBP 

always assesses the mental capacity, 

age, and gender of the UAC to ensure 

that the most safe and secure setting is 

available. 

Proposed 8 CFR 236.3(g)—DHS 

Procedures in the Apprehension and 

Processing of Minors or UACs 

Current section 236.3(g) provides that 

each juvenile apprehended in the 

immediate vicinity of the border who 

permanently resides in Mexico or 

Canada shall be informed, prior to the 

presentation of the voluntary departure 

form or being allowed to withdraw his 

or her application for admission, that he 

or she may make a telephone call to a 

parent, close relative, a friend, or 

organization on the free legal services 

list. The current regulation also 

provides that if the juvenile does not 

reside in Mexico or Canada, that 

juvenile must in fact communicate with 

a parent, adult relative, friend, or with 

an organization found on the free legal 

services list prior to presentation of the 

voluntary departure form. 

In addition, the current regulations at 

8 CFR 236.3(h) provide for alien 

juveniles to be given a Form I–770 

Notice of Rights and Disposition, which 

will be read and explained to the 

juvenile in a language the juvenile 

understands if he or she is less than 14 

years of age. This paragraph further 

provides that, in the event that a 

juvenile who has requested a hearing 

pursuant to the Form I–770 

subsequently decides to accept 

voluntary departure or is allowed to 

withdraw his or her application for 

admission, a new Form I–770 shall be 

given to, and signed by the juvenile. 

The former INS promulgated much of 

8 CFR 236.3 to implement the U.S. 

District Court for the Central District of 

California’s order in Perez-Funez v. Dist. 

Dir., INS, 619 F. Supp. 656 (C.D. Cal. 

1985), which required INS to afford 

certain procedural safeguards to 

unaccompanied juveniles who are taken 

into immigration custody prior to 

permitting voluntary departure. See 53 

FR 17449 (May 17, 1988). 

Paragraph 12(A) of the FSA provides 

that whenever the Government takes a 

minor or UAC into custody, it shall 

expeditiously process the minor or UAC 

and shall provide the minor or UAC 

with a notice of rights, including the 

right to a bond redetermination hearing, 

if applicable. Under paragraph 24(D) of 

the FSA, DHS promptly provides all 

non-UAC minors who are not released 

with a Form I–770, an explanation of 

the right of judicial review, and a list of 

free legal services. The proposed rule’s 

section 236.3(g) would retain the 

provisions related to the presentation of 

the Form I–770, explanation of the right 

of judicial review, and the list of free 

legal services, as set out in current 

regulations and the FSA. 

The proposed regulations at 8 CFR 

236.3(g)(1) would change the regulatory 

text to reflect current operations, but 

also preserve the intent of these 

regulations and FSA paragraphs 12(A) 

and 24(D), and would continue to 

comply with Perez-Funez. Specifically, 

proposed § 236.3(g)(1)(i) would update 

the requirements related to the Form I– 

770 to reflect Paragraph 12(A) and 

current operational realities. It also 

would make minor clarifications to the 

current regulatory language by adding 

that the Form I–770 can be provided in 

a language ‘‘and manner’’ the minor or 

UAC understands. FSA Paragraph 12(A) 

requires that all minors in DHS custody, 

even those who request to withdraw 

their application for admission or 

request voluntary departure (which 

includes voluntary departure, as 

described at 8 CFR 240.25(a), sometimes 

referred to as a ‘‘voluntary return’’), will 

be provided with a notice of rights. 

Pursuant to the requirements of the 

current regulations and FSA Paragraph 

12(A), CBP currently provides an I–770 

to each minor or UAC during 

processing. If, after processing, CBP 

determines that a minor or UAC who 

was processed for a voluntary departure 

or a withdrawal of his or her application 

for admission is no longer amenable to 

such a disposition because, for instance, 

the minor or UAC is no longer eligible 

for voluntary departure, CBP will reprocess the minor or UAC for a more 

appropriate disposition, such as the 

issuance of a Notice to Appear before an 

immigration judge. When the minor or 

UAC is reprocessed, the minor or UAC 

is issued a new I–770, or the original 

one is updated accordingly. By issuing 

a new I–770, or updating the original 

one, CBP ensures that, in situations in 

which it is appropriate to change a 

minor or UAC’s immigration 

disposition, the minor or UAC 

continues to remain aware of his or her 

rights. In addition, CBP generally 

provides a minor or UAC who is being 

processed for a Notice to Appear with 

the list of free legal service providers. 

Proposed 8 CFR 236.3(g) would 

provide that minors or UACs who enter 

DHS custody will be provided an I–770 

that will include a statement that the 

minor or UAC may make a telephone 

call to a parent, close relative, or friend. 

The proposed rule would specifically 

address the list of free legal service 

providers at proposed § 236.3(g)(1)(iii), 

which would apply to every minor who 

is not a UAC who is transferred to or 

remains in a DHS detention facility. 

In addition, pursuant to the TVPRA, 

DHS currently screens all UACs from 

contiguous countries to determine 

whether such a UAC may be permitted 

to withdraw his or her application for 

admission. As part of this screening, the 

UAC is provided with an I–770 Notice 

of Rights. UACs from non-contiguous 

countries are not permitted to withdraw 

their application for admission, but are 

similarly provided with the I–770 

Notice of Rights. These TVPRA 

requirements similarly ensure that the 

due process concerns identified by the 

court in Perez-Funez are adequately 

addressed. 

Proposed § 236.3(g)(1)(i) also does not 

include the requirement in current 

section 8 CFR 236.3(g) that a juvenile 

who does not reside in Mexico or 

Canada must in fact communicate with 

a parent, adult relative, friend, or with 

an organization found on the free legal 

services list prior to presentation of the 

voluntary departure form. However, the 

passage of the TVPRA has made this 

requirement no longer necessary. 

Specifically, pursuant to the TVRPA, 

only UACs who reside permanently in 

Mexico or Canada are permitted to 

withdraw their application for 

admission. 8 U.S.C. 1232(a)(2). 

Additionally, any minor who is not a 

UAC, but who is accompanied by a 

parent or legal guardian who is 

permitted to voluntarily depart the 

United States or withdraw his or her 

application for admission as a member 

of a family unit would, in general, be 

undertaking such action along with his 

or her accompanying parent or legal 

guardian. Therefore, the minor would, 

by default, have an opportunity to 

communicate with his or her parent or 

legal guardian at that time. 

Proposed § 236.3(g)(1)(i) relates only 

to situations in which DHS processes a 

minor or UAC. Thus, it does not address 

situations in which a minor or UAC is 

in immigration proceedings before an 

immigration judge. For example, this 

regulation does not address a situation 

in which a minor or UAC has been 

granted voluntary departure by an 

immigration judge, but then 

subsequently requests to proceed to a 

hearing. In such a situation, DHS 

envisions that, consistent with current 

practice, the immigration judge would 

provide the minor or UAC with an 

appropriate advisal of rights. 

Similarly, proposed §§ 236.3(g)(1)(ii) 

and (g)(1)(iii) would reflect the 

requirements in Paragraph 24(D) of the 

FSA related to the provision of the 

notice of judicial review and the notice 


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18Pursuant to the requirements of the HSA and 

TVPRA, only HHS has the authority to release a 

minor to a non-parent or legal guardian, through the 

process of finding a sponsor for a UAC. See 8 U.S.C. 

1232. 

of free legal service providers. 

Specifically, proposed § 236.3(g)(1)(ii) 

would provide that every minor who is 

not a UAC who remains in or is 

transferred to a DHS detention facility 

will be provided with the Notice of 

Right to Seek Judicial Review, as is 

provided in FSA Paragraph 24(D) and 

Exhibit 6. Similarly, proposed 

§ 236.3(g)(1)(iii) would provide that 

such minors will be provided with the 

list of free legal service providers, as 

provided in FSA Paragraph 24(D). 

Proposed § 236.3(g)(2) discusses 

DHS’s custodial care of a minor or UAC 

immediately following apprehension. 

Therefore, this paragraph applies, in 

general, to the time that a minor or UAC 

remains in a CBP facility prior to being 

transferred to ICE or to HHS. This 

paragraph parallels the requirements of 

FSA paragraphs 11 and 12(A). For 

instance, paragraph (g)(2), like the FSA, 

would require that minors and UACs 

shall be held in the least restrictive 

setting appropriate to the minor or 

UAC’s age and special needs, provided 

that such setting is consistent with the 

need to protect the minor or UAC’s 

well-being and that of others, as well as 

with any other laws, regulations, or 

legal requirements. The proposed rule 

would also include a cross-reference to 

DHS’s regulations at 6 CFR 115.114, 

dealing specifically with sexual abuse 

and assault prevention for juvenile and 

family detainees in DHS’s short-term 

holding facilities. 

Proposed paragraph (g)(2), like the 

FSA, would require that minors and 

UACs be housed in facilities that are 

safe and sanitary, and that the facilities 

provide access to toilets and sinks, 

drinking water and food as appropriate, 

access to emergency medical assistance 

as needed, and adequate temperature 

and ventilation. 

Consistent with FSA paragraphs 11 

and 12(A), proposed paragraph (g)(2)(i) 

provides for contact between a minor or 

UAC and family members arrested with 

the minor or UAC. Following arrest of 

a minor or UAC and accompanying 

family members, CBP transports all 

individuals to a CBP facility for 

processing. During the time that the 

family group spends at the facility, CBP 

provides contact between the minor or 

UAC and all accompanying family 

members, absent concerns about the 

safety of the minor or UAC. This 

paragraph, therefore, addresses only the 

issue of contact between family 

members while they remain in CBP 

custody. The proposed rule is more 

detailed than FSA paragraph 12(A), 

insofar as it states, consistent with FSA 

paragraph 11, that the safety and wellbeing of the minor or UAC and 

operational feasibility are relevant 

considerations when allowing such 

contact. This is consistent with FSA 

paragraph 11, which requires that the 

setting of a juvenile’s detention or 

holding be consistent with a range of 

factors, including the need to protect the 

juvenile’s well-being or that of others. It 

is also consistent with DHS’s 

regulations on the prevention of sexual 

abuse and assault in its facilities. See 6 

CFR 115.14, 115.114. 

DHS’s use of the term ‘‘operationally 

feasible’’ in this paragraph does not 

mean ‘‘possible,’’ but is intended to 

indicate that there may be limited shortterm circumstances in which, while a 

minor or UAC remains together with 

family members in the same CBP 

facility, providing such contact would 

place an undue burden on agency 

operations. For instance, if a family 

member arrested with a minor or UAC 

requires short-term, immediate medical 

attention, CBP may be required to 

temporarily limit contact between that 

family member and the minor or UAC, 

in order to provide appropriate medical 

treatment. Or, CBP may have a 

legitimate law enforcement reason to 

temporarily limit contact between a 

minor or UAC and accompanying family 

members, such as when CBP decides it 

is in the minor or UAC’s best interest to 

interview all family members 

separately. However, CBP will provide 

contact with family members arrested 

with the minor or UAC, and/or will 

hold accompanied minors in the same 

hold rooms as their accompanying 

family members, if doing so is 

consistent with the minor or UAC’s 

safety and well-being and does not place 

an undue burden on agency operations. 

Similarly, the proposed regulations 

would contain the same limit as the 

FSA on the amount of time UACs can 

be housed with an unrelated adult (no 

more than 24 hours), but the proposed 

regulations would explicitly allow DHS 

to depart from this standard in 

emergencies or other exigent 

circumstances, to the extent consistent 

with 6 CFR 115.14(b) and 115.114(b). 

For example, it may be necessary to 

house UACs with unrelated adults for 

more than 24 hours during a weatherrelated disaster such as hurricanes in 

southern Texas, or if an outbreak of a 

communicable disease such as scabies 

or chicken pox at a facility requires the 

temporary commingling of the detainee 

population. Appropriate consideration 

is given to age, mental condition, 

physical condition, and other factors 

when placing UACs into space with 

unrelated adults. 

Where a juvenile is apprehended with 

his or her parent or legal guardian, the 

current regulations indicate that such 

parent or legal guardian may swear out 

an affidavit designating a person to 

whom the juvenile may be released. 8 

CFR 236.3(b)(3). Since the passage of the 

TVPRA, however, DHS no longer has 

the authority to release a juvenile to 

someone who is not a parent or legal 

guardian, so this provision must be 

amended.18 If a parent or legal guardian 

is unavailable to provide care and 

physical custody for an alien under the 

age of 18, and the alien has no lawful 

status in the United States, the alien 

meets the definition of a UAC. 6 U.S.C. 

279(g). Under section 235(b)(3) of the 

TVPRA (8 U.S.C. 1232(b)(3)), DHS must 

transfer UACs to HHS custody within 72 

hours of determining that a juvenile is 

a UAC, absent exceptional 

circumstances. Thus, a parent or legal 

guardian must be available for a minor 

without lawful status in DHS custody 

for DHS to release that minor. The 

proposed rule would therefore remove 

the current regulatory language at 8 CFR 

236.3(b)(3) authorizing a parent or legal 

guardian to swear an affidavit 

authorizing the release of the minor to 

anyone who is not also a parent or legal 

guardian. 

Proposed 8 CFR 236.3(h)—Detention of 

Family Units 

DHS’s policy, consistent with E.O. 

13841, is to maintain family unity, 

including by detaining families together 

where appropriate and consistent with 

law and available resources. The current 

regulations, however, do not address the 

detention of non-UAC minors together 

with their parents or legal guardians as 

‘‘family units’’ while in the custody of 

DHS. Similarly, while the FSA 

considers that juveniles may be initially 

held with related family members, the 

FSA does not address whether the 

Government may continue to hold 

minors together with their parents or 

legal guardians after transfer to a 

‘‘licensed program.’’ The proposed 

regulations in the new section 236.3(h) 

would set out requirements that must be 

met for a family to be detained together 

in an FRC. Per the definitions in 

proposed paragraph (b), and in 

accordance with the TVPRA, only 

minors, not UACs, would be held in 

DHS custody at an FRC. 

The intention of this proposed 

paragraph is to clarify that DHS may, 

pursuant to its existing legal authorities, 

see, e.g., INA sec. 235(b), (b)(1)(B), 

(b)(1)(B)(iii)(I); 236; 241(a), detain 


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members of a family unit together. 

Nothing in this proposed rule impacts 

DHS’s existing detention authority. 

Because the current regulations do not 

address detaining non-UAC minors 

together with their parents or legal 

guardians as family units, the current 

regulations also do not explicitly 

consider what may happen when DHS 

continues to detain a parent or legal 

guardian, but could otherwise release a 

non-UAC minor. Current immigration 

law describes several situations in 

which an individual alien may not be 

released from detention, regardless of 

whether that alien is part of a family 

unit. See, e.g., INA sec. 235(b), (b)(1)(B), 

(b)(1)(B)(iii)(IV); 241(a). 

If the parent or legal guardian of a 

family unit is subject to mandatory 

detention, but the non-UAC minor of 

the family unit is otherwise eligible for 

release, DHS must continue to detain 

the parent or legal guardian, consistent 

with applicable law and policy. 

Proposed 8 CFR 236.3(i)—Detention of 

Minors Who Are Not UACs in DHS 

Custody 

The current regulations contain one 

short paragraph about juvenile 

detention, stating that DHS may detain 

a juvenile if such detention is 

‘‘necessary, for such interim period of 

time as is required to locate suitable 

placement for the juvenile’’ either with 

a parent, legal guardian, adult relative, 

or other suitable custodian or custodial 

facility. 8 CFR 236.3(d). As explained 

several times throughout this preamble, 

the FSA contains significant detail 

about requirements for DHS to detain 

juveniles, including a list of 

requirements for conditions of detention 

in the FSA’s Exhibit 1. The proposed 

regulations at section 236.3(i) would 

completely replace the current 

regulations at section 236.3(d) with 

respect to the detention of minors who 

are not UACs. 

The current regulations require that 

juveniles who are detained by DHS be 

housed in detention facilities that have 

separate accommodations for juveniles. 

See 8 CFR 236.3(d). In addition, 6 CFR 

115.14, first promulgated in 2014, 

provides that minors are detained in the 

least restrictive setting appropriate for 

the minor’s age and needs. That 

regulation tracks FSA paragraph 11. 

Accordingly, this proposed rule would 

cross-reference that regulation and 

expand on it. Additionally, the 

proposed regulations would make clear 

that minors are placed temporarily in a 

licensed facility, as defined in 

paragraph (b) of proposed § 236.3, until 

release can be effectuated as described 

in proposed § 236.3(j). 

The proposed regulations at 

§ 236.3(i)(1) would provide, like 

paragraph 21 of the FSA, that minors 

who are not UACs must be transferred 

to state or county juvenile detention 

facilities, a secure DHS detention 

facility, or a DHS-contracted facility 

having separate accommodations for 

minors if they meet certain criteria. A 

non-UAC minor may be placed in one 

of these facilities because the minor is 

charged with, is chargeable with, or 

convicted of a crime or has been 

charged with, is chargeable with, is the 

subject to delinquency proceedings or 

has been adjudicated as delinquent. 

There is an exception for petty offenses, 

and another exception for when the 

offense is isolated, not within a pattern 

or practice of criminal activity, does not 

involve violence against a person, and 

does not involve the use or carrying of 

a weapon. DHS has retained these 

exceptions in the proposed rule, but has 

reworded them in the affirmative for 

clarity. Rather than explain when DHS 

would not use secure detention (such as 

the exception to secure detention for 

petty offenses in paragraph 21(A)(ii) of 

the FSA), the proposed rule would more 

clearly explain when DHS would use 

secure detention. As a consequence of 

these changes, there may be some 

isolated, non-violent offenses that, 

although not ‘‘petty’’ as defined in 

paragraph 21(A)(ii) of the FSA, are 

insufficient cause to place a minor in 

secure detention. These clarifications 

are consistent with DHS’s current 

practice, and are consistent with the 

intent underlying FSA paragraph 21. 

Also included in the FSA’s list of 

reasons to house a minor in a secure 

facility are committing, or making 

credible threats to commit, a violent or 

malicious act while in custody or while 

in the presence of an immigration 

officer; engaging, while in a licensed 

facility, in certain conduct that is 

unacceptably disruptive of the normal 

functioning of the licensed facility; 

being an escape risk; or for the minor’s 

own security. DHS chose not to include 

in the proposed regulatory text the 

specific examples of behavior or 

offenses that could result in the secure 

detention of a minor, as they appear in 

FSA paragraph 21, because the 

examples are non-exhaustive and 

imprecise. For instance, examples listed 

in paragraph 21 of what may be 

considered nonviolent, isolated offenses 

(e.g., breaking and entering, vandalism, 

or driving under the influence) may be 

classified as violent offenses in some 

states. Including these examples as part 

of codified regulatory text may 

inadvertently lead to more confusion 

than clarity. 

Under proposed § 236.3(i)(2), 

consistent with FSA paragraph 23, DHS 

would place a minor in a less restrictive 

alternative if such an alternative is 

available and appropriate in the 

circumstances, even if the provisions of 

section 236.3(i)(1) apply. Finally, as 

provided under paragraph 6 of the FSA, 

proposed § 236.3(i)(3) would provide 

that, unless a secure facility is 

appropriate pursuant to proposed 

§ 236.3(i)(1) and (2), DHS facilities used 

for the detention of minors would be 

non-secure facilities. This proposed 

paragraph, like FSA paragraph 32(C), 

provides that agreements for the 

placement of minors in non-INS 

facilities shall permit attorney-client 

visits. Proposed § 236.3(i)(2) explains 

that the secure facilities used by DHS to 

detain non-UAC minors will also permit 

attorney-client visits pursuant to 

applicable facility rules and regulations. 

Proposed § 236.3(i)(3) sets forth 

concepts also articulated in FSA 

paragraphs 12, 14, and 19, that unless a 

detention in a secure facility is 

otherwise required, facilities used for 

the detention of minors shall be nonsecure. 

Proposed § 236.3(i)(4) would set out 

the standards for ‘‘licensed programs,’’ 

as in paragraphs 6 and 19 of the FSA. 

While the proposed rule would not 

define ‘‘licensed program,’’ DHS 

proposes that all non-secure facilities 

used for the detention of non-UAC 

minors would abide by these standards. 

These standards mirror the 

requirements of Exhibit 1 of the FSA 

and the current ICE Family Residential 

Standards. In addition, the standards in 

proposed paragraph (i)(4) would serve 

as a baseline of what would be required 

of a facility audited by a third-party 

when licensing by the state, county, or 

municipality is otherwise unavailable, 

pursuant to proposed paragraph (b)(9) of 

this section. At a minimum, these 

standards must include, but are not 

limited to, proper physical care, 

including living accommodations, food, 

clothing, routine medical and dental 

care, family planning services, 

emergency care (including a screening 

for infectious disease) within 48 hours 

of admission, a needs assessment 

including both educational and special 

needs assessments, educational services 

including instruction in the English 

language, appropriate foreign language 

reading materials for leisure time 

reading, recreation and leisure time 

activities, mental health services, group 

counseling, orientation including legal 

assistance that is available, access to 

religious services of the minor’s choice, 


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19This rule would delete a reference to such 

discretion at current 8 CFR 236.3(b)(2), but such 

reference is unnecessary to ensure DHS discretion 

to effect simultaneous release. For instance, in the 

expedited removal context, DHS may parole the 

parent or legal guardian pursuant to the standards 

at 8 CFR part 235. And other parole standards are 

contained at 8 CFR 212.5. There are also other tools 

available to effect simultaneous release, such as 

bond. 

20The U.S. District Court for the Central District 

of California has rejected this argument, but in 

doing so, it did not consider the regulatory 

provisions at 8 CFR 235.3. Flores v. Sessions, No. 

2:85–cv–04544, at 25 n.18 (C.D. Cal. June 27, 2017). 

That decision requires that ICE must ignore 

Congress’s plain intent with regard to the 

availability of parole for aliens in expedited 

removal proceedings and in some instances must 

consider parole for individuals subject to final 

orders of removal. The appeal from this decision is 

currently pending before the U.S. Court of Appeals 

for the Ninth Circuit. See Flores v. Sessions, No. 

17–56297 (9th Cir.) (docketed Aug. 28, 2017). 

visitation and contact with family 

members, a reasonable right to privacy 

of the minor, and legal and family 

reunification services. Finally, these 

standards, like FSA paragraph 32(C), 

require that agreements for placement of 

minors in non-INS facilities shall permit 

attorney-client visits. Proposed 

paragraph 236.3(i)(4) makes clear that 

DHS permits attorney-client visits 

pursuant to applicable facility rules and 

regulations in all licensed, non-secure 

facilities in which DHS places non-UAC 

minors. 

Related to the requirements placed on 

facilities used for the detention of 

minors, but not included in the Exhibit 

1 standards, is the requirement found at 

FSA paragraph 19. FSA paragraph 19 

permits ‘‘licensed programs’’ to transfer 

temporary physical custody of minors 

prior to securing permission from the 

Government in the event of an 

emergency, provided that they notify 

the Government as soon as practicable, 

but in all cases within 8 hours. 

Proposed paragraph 236.3(i)(5) does the 

same, although applies it to ‘‘licensed, 

non-secure facilities,’’ instead of 

‘‘licensed programs,’’ for reasons 

explained above. 

Proposed 8 CFR 236.3(j)—Release of 

Minors From DHS Custody 

The current regulations at § 236.3(b) 

address the release of juveniles when a 

determination is made that such 

juveniles may be released on bond, 

parole, or on their own recognizance. 

Provided detention of a juvenile is not 

required to secure the juvenile’s 

appearance before DHS or the 

immigration court, and is not necessary 

to ensure the juvenile’s safety or that of 

others, the current regulations allow a 

juvenile to be released to a parent, legal 

guardian, or an adult relative who is not 

currently in immigration detention. 

Current paragraph (b) goes on to state 

that if the parent, legal guardian, or 

relative is located at a place far from the 

current location of the juvenile, the 

relative can secure the release of the 

juvenile at the closest DHS office to that 

relative. The issue of transportation of 

the juvenile to the relative once release 

is secured is not discussed in the 

current regulation. 

FSA paragraph 14 requires DHS to 

release a minor without unnecessary 

delay when DHS determines that the 

detention of the minor is not required 

either to secure timely appearance 

before DHS or an immigration judge, or 

to ensure the minor’s safety or that of 

others. FSA paragraph 14 also provides 

a list of custodians to whom a minor 

may be released: A parent; legal 

guardian; adult relative (brother, sister, 

aunt, uncle, or grandparent); an adult 

individual or entity designated by the 

parent or legal guardian as capable and 

willing to care for the minor’s wellbeing; a licensed program; or an adult 

individual or entity seeking custody 

when it appears that no other likely 

alternative to long term detention is 

available and family reunification is not 

a reasonable possibility. FSA paragraph 

26 states that the Government shall 

assist in making transportation 

arrangements to the office nearest the 

location of the person or facility to 

whom a minor is to be released 

pursuant to paragraph 14. Despite the 

language of the current regulations and 

the FSA, pursuant to the TVPRA and 

the HSA, DHS does not have the 

authority to release a minor to anyone 

other than HHS or a parent or legal 

guardian. Therefore, in order to comply 

with both paragraph 14 and the TVPRA, 

DHS may be required, in some 

situations, to transfer a child to HHS 

when it is necessary to continue to 

detain a parent or legal guardian. DHS 

typically has discretion under existing 

authorities to simultaneously parole the 

child and the parent or legal guardian, 

which would remain unchanged.19

The proposed regulation at § 236.3(j) 

would amend the approach laid out in 

current § 236.3(b), and make it 

consistent with the requirements of the 

TVPRA and the HSA (enacted after the 

regulation was originally promulgated), 

and executive orders, as well as with the 

current operational environment, which 

has also changed since the provision’s 

original promulgation. With the 

exception of removing the list of 

individuals to whom a minor may be 

released, as described above, the rule 

largely incorporates the text of 

paragraph 14. However, the proposed 

rule would align the FSA paragraph 14 

standards with existing statutes and 

regulations, and thus permit DHS to 

exercise its existing discretionary 

authorities governing release. 

Aliens, including minors in family 

units, who are subject to expedited 

removal and who have not been found 

to have a credible fear or are still 

pending a credible fear determination 

are subject to mandatory detention. 8 

U.S.C. 1225(b)(1)(B)(iii)(IV). DHS, 

however, retains the discretion to 

release such aliens on parole, based on 

a case-by-case determination that parole 

is for an ‘‘urgent humanitarian need or 

significant public benefit.’’ Id. 

1182(d)(5)(A). Pursuant to the 

regulations, aliens who are in expedited 

removal proceedings and are pending a 

credible fear determination or who have 

been found not to have such fear, 

release on parole can only satisfy this 

standard when there is a medical 

necessity or a law enforcement need. 8 

CFR 235.3(b)(4)(ii), (b)(2)(iii). Nothing 

indicates that, by entering into the FSA, 

the Government intended to subvert the 

intent of Congress with regard to the 

detention of minors in family units, 

allowing for their release into the 

United States simply based on 

consideration of those factors listed in 

paragraph 14 of the FSA.20

The intended effect of the draft rule 

is to change current practice and the 

text of FSA paragraph 14 to affirm that 

parole is within the discretion of DHS 

as intended by statute. For example, 

minors in expedited removal will be 

subject to the heightened standard in 

the 8 CFR 235.3(b). As indicated above, 

DHS is proposing to remove the 

reference to 8 CFR 235.3(b) in section 

212.5(b) to make clear that the parole 

standard that applies to those in 

expedited removal is found in section 

235.3 and not 212.5. Moreover, DHS 

will not make universal parole 

determinations for all minors placed 

into FRCs. 

For individuals not in expedited 

removal proceedings, parole is available 

subject to the generally applicable 

parole regulation. See 8 CFR 212.5(b); 

see also 62 FR 10312, 10320 (1997). For 

those aliens in expedited removal who 

are found to have a credible fear and 

referred for proceeding under section 

240 of the INA, parole, bond, or release 

on recognizance or other conditions are 

available, depending on the particular 

circumstances of the alien’s entry. 

Aliens who are eligible for release on 

bond, or release on their own 

recognizance or other conditions, the 

availability of such release depends on 

whether the alien can establish he or 

she is not a flight risk or a danger to the 

community. Matter of Patel, 15 I&N Dec. 


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21E.O. 13841 (June 20, 2018), 83 FR 29435. 

666 (BIA 1976). Paragraph 14 similarly 

states that DHS makes a determination 

that detention of a minor is not 

‘‘required to secure his or her timely 

appearance before the INS or the 

immigration court, or to ensure the 

minor’s safety or that of others.’’ FSA 

paragraph 14. Both the FSA and custody 

standards applicable to aliens eligible 

for release on bond or on recognizance 

have a preference for release if an alien 

makes the requisite showing that they 

are not a flight risk or a danger to the 

community. Id.; see also Matter of Patel. 

15 I&N Dec at 666. (‘‘An alien generally 

is not and should not be detained or 

required to post bond except on a 

finding that he is a threat to the national 

security, or that he is a poor bail risk.’’). 

This is the same standard used under 

paragraph 14 of the FSA; thus the text 

in proposed paragraph (j) would not 

reflect a substantive change in the initial 

custody determinations made by DHS 

for those minors eligible for such 

determinations. 

Once it is determined that the 

applicable statutes and regulations 

permit release, proposed § 236.3(j) 

would permit release of a minor only to 

a parent or legal guardian who is 

available to provide care and custody, in 

accordance with the TVPRA, using the 

same factors for determining whether 

release is appropriate as are contained 

in paragraph 14. Included in the 

relevant factors would typically be 

consideration of whether detention is 

‘‘required either to secure his or her 

timely appearance before [DHS] or the 

immigration court, or to ensure the 

minor’s safety or that of others.’’ DHS 

also considers family unity when 

evaluating whether release of a minor is 

appropriate. This approach is consistent 

with the President’s June 20, 2018, 

Executive Order 13841, ‘‘Affording 

Congress an Opportunity to Address 

Family Separation,’’ which identifies a 

policy of ‘‘maintain[ing] family unity, 

including by detaining alien families 

together where appropriate and 

consistent with law and available 

resources.’’ 21 Moreover, in most cases, 

the parent is in the best position to 

represent the minor’s rights and wishes 

and can help the minor to prepare his 

or her case. It is also more expedient for 

the family, if the cases are interrelated, 

to have a single proceeding adjudicated 

in the same location, by the same 

adjudicator. 

When determining whether an 

individual is a parent or legal guardian, 

DHS would use all available evidence, 

such as birth certificates or other 

available documentation, to ensure the 

parental relationship or legal 

guardianship is bona fide. If the 

relationship cannot be established, the 

juvenile would be treated as a UAC and 

would be transferred into HHS custody. 

If the relationship is established, but the 

parent or legal guardian lives far away, 

the proposed regulations use the FSA 

paragraph 26 language, stating that DHS 

shall assist with making arrangements 

for transportation and maintains the 

discretion to actually provide 

transportation to the DHS office nearest 

the parent or legal guardian. 

Finally, the proposed rule would not 

include provisions parallel to the 

requirements in paragraphs 15 or 16 

related to release from custody. These 

requirements have been superseded in 

part by the TVPRA, under which DHS 

cannot release a juvenile to anyone 

other than a parent or legal guardian. 

Further, parents have no affirmative 

right of release under the provisions of 

the FSA. Therefore, if DHS determines 

that the accompanying parent should be 

detained, releasing a minor under these 

circumstances would be either a release 

to a parent who is not currently in 

detention, or, in all other cases, a 

transfer to HHS custody, rather than a 

release from custody as envisioned 

under the FSA. In addition, the 

requirements of paragraphs 15 and 16, 

which are primarily for the 

Government’s benefit, are not currently 

implemented. 

Proposed 8 CFR 236.3(k)—Procedures 

Upon Transfer 

Current 8 CFR 236.3 does not set out 

any procedures to specifically govern 

the transfer of minors. FSA paragraph 

27 provides that a minor who is 

transferred from a placement in one 

‘‘licensed program’’ to another shall be 

transferred with his/her possessions and 

legal papers, unless the possessions 

exceed the amount permitted by 

carriers, in which case the possessions 

will be shipped to the minor in a timely 

manner. The proposed regulations at 

§ 236.3(k) include the same requirement 

for the transfer of possessions when a 

minor who is not a UAC is transferred 

between licensed, non-secure facilities. 

While DHS understands paragraph 27 of 

the FSA to, in practice, refer to transfer 

between ICE facilities (the only DHS 

facilities that qualify as ‘‘placements’’ in 

‘‘licensed programs,’’ under the 

meaning of the FSA), minors are 

generally transferred with their 

possessions if they are moving between 

CBP facilities, or from a CBP facility to 

an ICE facility. 

Paragraph 27 of the FSA also provides 

that no minor represented by counsel 

shall be transferred without advance 

notice to such counsel except in 

unusual and compelling circumstances. 

The proposed regulations also provide 

that if a minor or UAC is represented by 

counsel, notice to counsel will be 

provided prior to any transfer of a minor 

or UAC from one ICE placement to 

another, or from an ICE placement to an 

ORR placement, unless unusual and 

compelling reasons, such as safety or 

escape-risk, exist, in which case counsel 

will receive notification within 24 hours 

of transfer. 

Proposed 8 CFR 236.3(l)—Notice to 

Parent of Refusal of Release or 

Application for Relief 

The current regulations provide that if 

a parent of a detained juvenile can be 

located, and is otherwise suitable to 

receive custody of the juvenile, and the 

juvenile indicates a refusal to be 

released to his or her parent, the 

parent(s) shall be notified of the 

juvenile’s refusal to be released to the 

parent(s), and the parent(s) shall be 

afforded the opportunity to present their 

views before a custody determination is 

made (§ 236.3(e)). Similarly, the current 

regulations provide that if a juvenile 

seeks release from detention, voluntary 

departure, parole, or any form of relief 

from removal, where it appears that the 

grant of such relief may effectively 

terminate some interest inherent in the 

parent-child relationship and/or the 

juvenile’s rights and interests are 

adverse to those of the parent, and the 

parent is presently residing in the 

United States, the parent shall be given 

notice of the juvenile’s application for 

relief, and shall be afforded an 

opportunity to present his or her views 

and assert his or her interest before a 

determination is made as to the merits 

of the request for relief (§ 236.3(f)). In 

both instances, the parents are given an 

opportunity to present their views to the 

district director, Director of the Office of 

Juvenile Affairs, or an immigration 

judge. 

The FSA does not discuss any 

necessary notification to parents of a 

juvenile’s refusal to be released to a 

parent or a juvenile’s application for 

relief from removal. DHS has reviewed 

the current regulatory provision and is 

proposing amendments to this 

paragraph to maintain the goals of this 

type of notification while reflecting the 

current distribution of responsibilities 

vis-a`-vis juveniles between DHS 

components and DOJ EOIR. The 

language of the current and proposed 

regulation appropriately protects 

parental rights while balancing a 

juvenile’s potential desire to take an 

action adverse to the wishes of his/her 

parent. 


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Given the current legal environment 

and operational practices, ICE and CBP 

would seldom, if ever, be responsible 

for providing any type of parental 

notification as required by 236.3(e) or 

(f). For instance, if a minor seeks release 

from ICE detention, ICE would only be 

required to notify that minor’s parent if 

the parent is presently residing in the 

United States and the minor’s release 

would terminate some interest inherent 

in the parent-child relationship. Yet 

even in this scenario, because DHS 

cannot release a minor to anyone other 

than a parent or legal guardian as 

discussed above, it seems unlikely that 

such release would ‘‘terminate some 

interest inherent in the parent-child 

relationship’’ as described in current 

§ 236.3(f). In practice, USCIS and EOIR 

are the entities most likely to be 

required to provide parental notification 

due to a potential termination of an 

interest inherent in the parent-child 

relationship, because USCIS 

adjudicators and EOIR immigration 

judges more frequently grant relief from 

removal that could impact a parentchild relationship. The proposed DHS 

regulations at 236.3(l) would remove 

language authorizing parents to present 

their views to immigration judges if 

their child refuses to be released into 

their custody, because currently 

immigration judges do not set 

conditions of release, and therefore do 

not decide to whom a minor or UAC 

will be released. However, the change 

does not prevent parents from 

presenting their views to DHS. Refusal 

of release is primarily an issue that 

affects DHS and HHS, rather than DOJ. 

In addition, certain types of requests 

listed in proposed 236.3(l) (i.e., parole) 

would be addressed to DHS alone, and 

an immigration judge would not have 

jurisdiction over such requests. 

The proposed changes to current 

sections 236(e) and (f) (in proposed 

§ 236.3(l)) would clarify the actual scope 

of DHS’s regulations, but would not 

represent a change in practice. The 

proposed rule would maintain parents’ 

right to be notified and present their 

views to DHS (but not an immigration 

judge) if a minor or UAC in DHS 

custody refuses to be released to that 

parent, if a grant of relief might 

terminate some parent-child 

relationship interests, or where the 

child’s interests are adverse to those of 

the parent. 

In addition, the proposed rule would 

not affect the EOIR notice requirement 

currently contained at 8 CFR 1236.3(f) 

for applications for relief. 

Proposed 8 CFR 236.3(m)—Bond 

Hearings 

The current regulations make no 

provision for bond hearings by 

immigration judges for minors as FSA 

paragraph 24(A) has been interpreted to 

require. Paragraph 24(A), states that a 

minor in ‘‘deportation proceedings’’ 

shall be afforded a bond 

redetermination unless he or she refuses 

such a determination. The proposed 

regulations at § 236.3(m) provide for 

review of DHS bond determinations by 

immigration judges to the extent 

permitted by 8 CFR 1003.19, but only 

for those minors: (1) Who are in removal 

proceedings under INA section 240, 8 

U.S.C. 1229a; and (2) who are in DHS 

custody. Those minors who are not in 

section 240 proceedings are ineligible to 

seek review by an immigration judge of 

their DHS custody determination. 

DHS proposes this paragraph to 

provide for bond hearings as under FSA 

paragraph 24(A), while updating the 

language to be consistent with 

developments in immigration law since 

the FSA was signed, including the 

TVPRA. FSA paragraph 24(A) refers to 

minors in ‘‘deportation proceedings.’’ 

The term ‘‘deportation proceedings,’’ 

however, is no longer used in 

immigration law due to the enactment 

of IIRIRA in 1996. Prior to IIRIRA’s 

enactment, the INS conducted two types 

of proceedings for aliens: ‘‘exclusion’’ 

proceedings and ‘‘deportation’’ 

proceedings. Section 304 of IIRIRA, 

however, changed the types of 

proceedings available to aliens under 

the INA, and what were previously 

known as ‘‘deportation’’ proceedings 

became ‘‘removal’’ proceedings. See 

INA sec. 240, 8 U.S.C. 1229a. IIRIRA 

also amended INA section 235 to 

provide for expedited removal 

proceedings for certain applicants for 

admission who would have previously 

been subject to ‘‘exclusion’’ 

proceedings. See INA sec. 235(b), 8 

U.S.C. 1225(b). Thus, DHS has proposed 

to update this language. Additionally, 

the proposed rule would clarify that this 

provision applies only to minors in DHS 

custody, in accordance with the TVPRA. 

Proposed 8 CFR 236.3(n)—Retaking 

Custody of a Previously Released Minor 

The current regulations have no 

provisions for reassuming custody of 

previously released minors if they 

become an escape-risk, become a danger 

to the community, or are issued a final 

order of removal after being released. 

The proposed regulations at § 236.3(n) 

would provide for this scenario. The 

regulations also explain that DHS may 

take a minor into custody if there is no 

longer a parent or legal guardian 

available to care for the minor, at which 

point the minor will be treated as a UAC 

and DHS will transfer him or her to 

HHS. 

Proposed 8 CFR 236.3(o)—Monitoring 

The current regulations at § 236.3(c) 

describe the duties of the Juvenile 

Coordinator, including the 

responsibility of locating suitable 

placements for juveniles. Paragraph 

28(A) of the FSA also includes a 

provision for a Juvenile Coordinator, but 

places more reporting and monitoring 

obligations on the Coordinator than 

currently exist in the regulations. The 

proposed regulations eliminate the 

requirement in the current regulations 

that the Juvenile Coordinator locate a 

suitable placement for minors, as these 

duties are generally exercised by 

immigration officers and other 

employees at DHS. Section 236.3(o), 

however, is being proposed to provide 

for monitoring, as under paragraph 

28(A) of the FSA, by proposing two 

Juvenile Coordinators—one for ICE and 

one for CBP—and charges each with 

monitoring statistics about UACs and 

minors who remain in DHS custody for 

longer than 72 hours. The statistical 

information may include, but would not 

be limited to, biographical information, 

dates of custody, placement, transfers, 

removals, or releases from custody. This 

information does not include 

immigration status or hearing dates, as 

referenced in FSA paragraph 28(A), 

because the import of this data for 

monitoring purposes is not immediately 

apparent. The plain language meaning 

of ‘‘immigration status’’ of particular 

aliens in DHS custody is not relevant to 

monitoring compliance with detention 

or holding condition requirements. It is 

only relevant to whether DHS is able to 

detain an individual. It is unclear what 

other meaning of the term ‘‘immigration 

status’’ could be relevant to monitoring 

compliance with these regulations. The 

hearing dates for aliens in DHS custody, 

which are not set by DHS and are 

frequently subject to change, are also 

not directly relevant to the monitoring 

of the conditions of detention for a 

minor alien. The juvenile coordinators 

may collect such data, if appropriate. 

The juvenile coordinators may also 

review additional data points should 

they deem it appropriate given 

operational changes and other 

considerations. 


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B. HHS Regulations 

Proposed 45 CFR Part 410, Subpart A— 

Care and Placement of Unaccompanied 

Alien Children 

This subpart states the purpose of this 

regulation and the general principles 

behind it, and sets standards for the care 

and placement of UACs as discussed 

below. ORR uses the term ‘‘placement’’ 

to refer to assigning UACs to facilities 

that ORR operates or arranges through a 

grant or contract, or assigning them to 

ORR-funded foster care. ORR uses the 

term ‘‘release’’ to refer to the release of 

UACs from ORR custody into the 

custody of an approved sponsor. 

Proposed 45 CFR 410.100—Scope of 

This Part 

Section 410.100 discusses what is 

covered under this part. Specifically, it 

states that this part covers the care, 

custody, and placement of UACs 

pursuant to section 462 of the HSA and 

section 235 of the TVPRA, and in light 

of the FSA. The proposed rule would 

make clear that the purpose of this rule 

is not to govern or describe the entire 

program, nor is it to implement either 

the HSA or the TVPRA in their entirety. 

Rather, the purpose of this rule is to 

implement the relevant and substantive 

terms of the FSA, and this rulemaking 

will apply provisions of the HSA and 

TVPRA only where such authorities 

would supersede or alter an FSA 

provision. 

Proposed 45 CFR 410.101—Definitions 

Section 410.101 states the definitions 

that apply to this part. Notably, the 

definition of UAC is from the HSA. See 

6 U.S.C. 279(g)(2); 8 U.S.C. 1232(g). The 

regulation uses the term ‘‘staff secure 

facility’’ in the same sense as the FSA 

uses the term ‘‘medium security 

facility.’’ ‘‘Shelter’’ includes facilities 

defined as ‘‘licensed facilities’’ under 

the FSA, and also includes staff secure 

facilities, i.e., medium security facilities 

as defined by the FSA. Other types of 

shelters might also be licensed, such as 

long term and transitional foster care 

facilities. The FSA does not define 

‘‘secure facility,’’ but this regulation 

proposes a definition consistent with 

the provisions of the FSA applying to 

secure facilities. These facilities may be 

a state or county juvenile detention 

facility or another form of secure ORR 

detention facility (such as a Residential 

Treatment Center), or a facility with an 

ORR contract or cooperative agreement 

having separate accommodations for 

minors. The definition uses the term 

‘‘cooperative agreement,’’ as ORR uses 

cooperative agreements for the majority 

of its shelters, pursuant to 8 U.S.C. 

1232(i). The definition recognizes that 

under the FSA, a secure facility does not 

need to meet the licensed facility 

provisions that would apply to other 

shelters. 

Section 410.101 defines 

unaccompanied alien child according to 

the definition set forth in the HSA. It, 

as well as the TVPRA, only gives ORR 

authority to provide care and custody of 

individuals who meet that definition. 

The statutes, however, do not set forth 

a process for determining whether an 

individual meets the definition of a 

UAC. Similar to proposed 8 CFR 

236.3(d), § 410.101 would make clear 

that ORR’s determination of whether a 

particular person is a UAC is an ongoing 

determination that may change based on 

the facts available to ORR. 

Proposed 45 CFR 410.102—ORR Care 

and Placement of Unaccompanied Alien 

Children 

Section 410.102 specifies the children 

for whom ORR provides care, custody, 

and placement. The regulation specifies 

that DHS handles immigration benefits 

and enforcement. The INS entered into 

the FSA prior to the enactment of the 

HSA and TVPRA, which transferred the 

care, and then custody, of the majority 

of UACs to ORR. The HSA recognizes 

that ORR does not have responsibility 

for adjudicating benefit determinations 

under the INA. This part recognizes the 

general principles of the FSA that while 

in custody, UACs shall be treated with 

dignity, respect, and special concern for 

their particular vulnerability. 

Proposed 45 CFR Part 410, Subpart B— 

Determining the Placement of an 

Unaccompanied Alien Child 

Proposed 45 CFR 410.200—Purpose of 

This Subpart 

As stated in§ 410.200, this subpart 

sets forth factors that ORR considers 

when placing UACs. 

Proposed 45 CFR 410.201— 

Considerations Generally Applicable to 

the Placement of an Unaccompanied 

Alien Child 

Section 410.201 addresses the 

considerations that generally apply to 

the placement of UAC. The provision 

generally parallels the FSA 

requirements. The provision notes that 

ORR makes reasonable efforts to provide 

placements in the geographic areas 

where DHS apprehends the majority of 

UACs. ORR complies with this 

provision, as ORR maintains the highest 

number of UAC beds in the state of 

Texas where most UACs are currently 

apprehended. 

Proposed 45 CFR 410.202—Placement 

of an Unaccompanied Alien Child in a 

Licensed Program 

Section 410.202 states that ORR 

places a UAC into a licensed program 

promptly after a UAC is referred to ORR 

legal custody, except in certain 

enumerated circumstances. See 8 

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

recognizes circumstances where a UAC 

is not promptly, or is not at all, placed 

in a licensed program. These 

circumstances include emergencies or 

an influx as defined in § 410.101 (in 

which case the UAC shall be placed in 

a licensed program as expeditiously as 

possible); where the UAC meets the 

criteria for placement in a secure 

facility; and as otherwise required by 

any court decree or court-approved 

settlement. Like the DHS portion of this 

proposed rule, proposed § 410.202 does 

not include the exception, which 

appears at paragraph 12(A)(4) of the 

FSA, that allows transfer within 5 days 

instead of 3 days in cases involving 

transport from remote areas or where an 

alien speaks an ‘‘unusual’’ language that 

requires the Government to locate an 

interpreter. As noted above, DHS has 

matured its operations such that these 

factors no longer materially delay 

transfer. 

Proposed 45 CFR 410.203—Criteria for 

Placing an Unaccompanied Alien Child 

in a Secure Facility 

Section 410.203 sets forth criteria for 

placing UACs in secure facilities. This 

part is consistent with the FSA criteria, 

except that under the TVPRA, ‘‘[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.’’ 8 U.S.C. 

1232(c)(2)(A). With respect to these 

regulations, therefore, the TVPRA 

removes the factor of being an escape 

risk, which is permissible grounds 

under the FSA, as a ground upon which 

ORR may place a UAC in a secure 

facility. 

In addition, HHS chose not to include 

in the proposed regulatory text the 

specific examples of behavior or 

offenses that could result in the secure 

detention of a UAC, as they appear in 

paragraph 21 of the FSA, because the 

examples are non-exhaustive and 

imprecise. For instance, examples listed 

in paragraph 21 of what may be 

considered nonviolent, isolated offenses 

(e.g., breaking and entering, vandalism, 

or driving under the influence) could be 

violent offenses in certain 

circumstances depending upon the 

actions accompanying them. In 


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addition, state law may classify these 

offenses as violent. Including these 

examples as part of codified regulatory 

text may inadvertently lead to more 

confusion rather than clarity, and 

eliminate the ability to make case-bycase determinations of the violence 

associated with a particular act. 

Under the proposed regulations, a 

UAC may be placed in a secure facility 

if ORR determines that the UAC: 

• Has been charged with, is 

chargeable, or has been convicted of a 

crime; or is the subject of delinquency 

proceedings, has been adjudicated 

delinquent, or is chargeable with a 

delinquent act; and where ORR assesses 

that the crimes or delinquent acts were 

not: 

Æ Isolated offenses that (1) were not 

within a pattern or practice of criminal 

activity and (2) did not involve violence 

against a person, or the use or carrying 

of a weapon; or 

Æ petty offenses, which are not 

considered grounds for a stricter means 

of detention in any case. 

‘‘Chargeable’’ means that ORR has 

probable cause to believe that the UAC 

has committed a specified offense. 

• While in DHS or ORR’s custody or 

while in the presence of an immigration 

officer, has committed, or has made 

credible threats to commit, a violent or 

malicious act (whether directed at 

himself/herself or others.). Note: that 

because the FSA states that such acts 

would have occurred ‘‘while in INS 

custody’’ or ‘‘in the presence of an INS 

officer,’’ we propose that such activities 

in either DHS or HHS custody or in the 

presence of an ‘‘immigration officer’’ 

would be evaluated. 

• Has engaged while in a licensed 

program in conduct that has proven to 

be unacceptably disruptive of the 

normal functioning of the licensed 

program in which the UAC is placed 

such that transfer is necessary to ensure 

the welfare of the UAC or others, as 

determined by the staff of the licensed 

program. 

In addition, ORR proposes the following 

as warranting placement in a secure 

facility, even though the FSA does not 

specifically mention such criteria. 

• First, if a UAC engages in 

unacceptably disruptive behavior that 

interferes with the normal functioning 

of a ‘‘staff secure’’ shelter, then the UAC 

may be transferred to secure facility. As 

written, the FSA looks only to such 

disruptive behavior when it occurs in a 

‘‘licensed’’ facility—which under the 

FSA does not include in its definition 

staff-secure facilities—even though the 

vast majority of such facilities receive 

the same licenses as non-secure shelters. 

However, under this rule, UACs could 

be immediately transferred to a secure 

facility for disruptive behavior in a nonsecure shelter, without the means to 

evaluate further disruption in a staff 

secure setting. In addition, allowing for 

evaluation while in staff-secure care 

allows HHS to protect the other children 

residing within such shelter; it allows 

HHS to move one UAC who is 

disrupting the operations of the staff 

secure facility and transfer him or her to 

a more restrictive level of care. 

• Second, the proposed rule adds to 

the list of behaviors that may be 

considered unacceptably disruptive. 

Examples provided in the FSA at 

paragraph 21 are: Drug or alcohol abuse, 

stealing, fighting, intimidation of others, 

etc. The agreement specifically says that 

the list is not exhaustive. Therefore, we 

propose to add to this list ‘‘displays 

sexual predatory behavior.’’ 

• Finally, in keeping with the July 30 

Order in Flores v. Sessions, the 

proposed rule states that placement in a 

secure RTC may not occur unless a 

licensed psychologist or psychiatrist 

determines that the UAC poses a risk of 

harm to self or others. 

Section 410.203 also sets forth review 

and approval of the decision to place a 

UAC in a secure facility consistent with 

the FSA. The FSA states that the 

determination to place a minor in a 

secure facility shall be reviewed and 

approved by the ‘‘regional juvenile 

coordinator.’’ This proposed rule uses 

the term ‘‘Federal Field Specialist,’’ as 

this is the official closest to such 

juvenile coordinator for ORR. (Note: 

Although not covered in this proposed 

rule, ORR also recognizes that the 

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

delegates to the Secretary of HHS the 

requirement for prescribing procedures 

governing agency review, on a monthly 

basis, of secure placements. ORR directs 

readers to sections 1.4.2. and 1.4.7 of the 

ORR Policy Guide (available at: https:// 

www.acf.hhs.gov/orr/resource/childrenentering-the-united-statesunaccompanied) for these procedurals 

under the TVPRA.) 

Proposed 45 CFR 410.204— 

Considerations When Determining 

Whether an Unaccompanied Alien 

Child is an Escape Risk 

Section 410.204 describes the 

considerations ORR takes into account 

when determining whether a UAC is an 

escape risk. This part is consistent with 

how the term ‘‘escape risk’’ is used in 

the FSA. The TVPRA removes the factor 

of being an escape risk as a ground upon 

which ORR may place a UAC in a 

secure facility, even though it 

constitutes permissible grounds under 

the FSA. The factor of escape risk, 

however, is still relevant to the 

evaluation of transfers between ORR 

facilities under the FSA as being an 

escape risk might cause a UAC to be 

stepped up from a non-secure level of 

care to a staff secure level of care where 

there is a higher staff-UAC ratio and a 

secure perimeter at the facility. Notably, 

an escape risk differs from a ‘‘risk of 

flight,’’ which is a term of art used in 

immigration law regarding an alien’s 

risk of not appearing for his or her 

immigration proceedings. 

Proposed 45 CFR 410.205— 

Applicability of Section 410.203 for 

Placement in a Secure Facility 

Section 410.205 provides that ORR 

does not place a UAC in a secure facility 

pursuant to § 410.203 if less restrictive 

alternatives, such as a staff secure 

facility or another licensed program, are 

available and appropriate in the 

circumstances. 

Proposed 45 CFR 410.206—Information 

for Unaccompanied Alien Children 

Concerning the Reasons for His or Her 

Placement in a Secure or Staff Secure 

Facility 

Section 410.206 specifies that, within 

a reasonable period of time, ORR 

provides each UAC placed in or 

transferred to a secure or staff secure 

facility with a notice of the reasons for 

the placement in a language the UAC 

understands. 

Proposed 45 CFR 410.207—Custody of 

an Unaccompanied Alien Child Placed 

Pursuant to This Subpart 

Section 410.207 specifies who has 

custody of a UAC under subpart B of 

these rules. The regulation specifies that 

upon release to an approved sponsor, a 

UAC is no longer in the custody of ORR. 

ORR would continue to have ongoing 

monitoring responsibilities under the 

HSA and TVPRA, but would not be the 

legal or physical custodian. See, e.g., 6 

U.S.C. 279(b)(1)(L); 8 U.S.C. 

1232(c)(3)(B). This interpretation 

accords with ORR’s longstanding 

interpretation, as well as provisions of 

the FSA (see e.g., paragraphs 15 through 

17, discussing ‘‘release’’ from custody). 

This provision recognizes that once a 

UAC is released, he or she is outside the 

custody of HHS and ORR. 

Proposed 45 CFR 410.208—Special 

Needs Minors 

Section 410.208 describes ORR’s 

policy regarding placement of a special 

needs minor. Note that an RTC may be 

considered a secure level of care and is 

discussed in section 410.203 of this 

Part. 


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22While the text of the FSA only uses the term 

‘‘minors,’’ HHS has interpreted this term to include 

UACs, who may or may not meet the definition of 

‘‘minor’’ in the FSA, given the subsequent 

enactment of the TVPRA, and the fact that HHS 

does not have custody of juveniles who are not 

UACs. 

Proposed 45 CFR 410.209—Procedures 

During an Emergency or Influx 

Section 410.209 describes the 

procedures ORR follows during an 

emergency or influx. The FSA defines 

‘‘emergency’’ and ‘‘influx.’’ HHS 

proposes to incorporate those 

definitions into its regulations with 

minor changes, consistent with the 

definitions in proposed 8 CFR 236.3. In 

addition, the FSA states that in the case 

of an emergency or influx of minors into 

the United States, UACs 22 should be 

placed in a licensed program as 

‘‘expeditiously as possible.’’ 

However, as DHS does, ORR also 

proposes a written plan describing the 

reasonable efforts it will take to place all 

UACs as expeditiously as possible into 

a licensed shelter when there is an 

influx or emergency consistent with 

proposed 410.209. 

Proposed 45 CFR 410 Subpart C, 

Releasing an Unaccompanied Alien 

Child From ORR Custody 

Proposed 45 CFR 410.300—Purpose of 

This Subpart 

As described in § 410.300, the 

purpose of this subpart is to address the 

policies and procedures used to release 

a UAC from ORR custody to an 

approved sponsor. 

Proposed 45 CFR 410.301—Sponsors to 

Whom ORR Releases an 

Unaccompanied Alien Child 

As specified in 410.301, ORR releases 

a UAC to a sponsor without unnecessary 

delay when ORR determines that 

continued ORR custody of the UAC is 

not required either to secure the UAC’s 

timely appearance before DHS or the 

immigration courts, or to ensure the 

UAC’s safety or the safety of others. 

Section 410.301 also contains the list 

of individuals (and entities) to whom 

ORR releases a UAC. ORR refers to the 

individuals and entities in this list as 

‘‘sponsors,’’ regardless of their specific 

relationship with the UAC. The list 

follows the order of preference set out 

in the FSA. 

Proposed 45 CFR 410.302—Sponsor 

Suitability Assessment Process 

Requirements Leading to Release of an 

Unaccompanied Alien Child From ORR 

Custody to a Sponsor 

Section 410.302 outlines the process 

requirements leading to release of a 

UAC from ORR custody to a sponsor 

(also referred to as ‘‘custodian’’). The 

FSA at paragraph 17 allows ORR the 

discretion to require a suitability 

assessment prior to release. Likewise, 

the TVPRA provides that ORR may not 

release a UAC to a potential sponsor 

unless ORR makes a determination that 

the proposed custodian is ‘‘capable of 

providing for the child’s physical and 

mental well-being. Such determination 

shall, at a minimum, include 

verification of the custodian’s identity 

and relationship to the child, if any, as 

well as an independent finding that the 

individual has not engaged in any 

activity that would indicate a potential 

risk to the child.’’ 8 U.S.C. 

1232(c)(3)(A). As such, this proposed 

rule requires a background check, 

including at least a verification of 

identity for potential sponsors in all 

circumstances. 

Like the FSA, the proposed rule also 

allows for the suitability assessment to 

include an investigation of the living 

conditions in which the UAC would be 

placed and the standard of care he or 

she would receive, interviews of 

household members, a home visit, and 

follow-up visits after release. 

Furthermore, where the TVPRA requires 

a home study, as specified in 8 U.S.C. 

1232(c)(3)(B), the proposed regulations 

acknowledge such requirement. 

The FSA says that the proposed 

sponsor must agree to the conditions of 

release by signing a custodial affidavit 

(Form I–134) and release agreement. 

However, the Form I–134 is a DHS form, 

and ORR does not use such form. 

Therefore, this proposed rule would 

have the sponsor sign an affirmation of 

abiding by the sponsor care agreement, 

which is the historical agreement and 

accompanying form ORR has used so 

that the sponsor acknowledges his or 

her responsibilities. 

For many years the suitability 

assessment has involved prospective 

sponsors and household members to be 

fingerprinted and for background checks 

to be run on their biometric and 

biographical data to ensure that release 

of a UAC to prospective sponsors would 

be safe. Fingerprinting of potential 

sponsors and household members is 

consistent with child welfare 

provisions. For example, all states 

require background checks for 

prospective foster care and adoptive 

parents, and kinship caregivers typically 

must meet most of these same 

requirements. See ‘‘Background Checks 

for Prospective Foster, Adoptive, and 

Kinship Caregivers,’’ available at: 

https://www.childwelfare.gov/pubPDFs/ 

background.pdf#page=2&view=Who 

needs background checks (last visited 

Aug. 4, 2018). As of the time of the 

publication of the report, in 48 states, all 

adults residing in the home also were 

subject to background checks. A 

criminal records check for adult 

sponsors and other household members 

will check the individual’s name in 

State, local or Federal law enforcement 

agencies’ records, including databases of 

records for any history of criminal 

convictions. And, nearly all states 

require a check of national criminal 

records. See also 42 U.S.C. 671(a)(20) 

(providing that states receiving federal 

funding for foster care and adoption 

assistance provide ‘‘procedures for 

criminal records checks, including 

fingerprint-based checks of national 

crime information databases (as defined 

in section 534(e)(3)(A) 1 of title 28), for 

any prospective foster or adoptive 

parent before the foster or adoptive 

parent may be finally approved for 

placement of a child . . . .’’) In many, 

if not most cases, as well, while a 

sponsor may be a biological parent, the 

child arrived unaccompanied, and may 

not have lived with the parent for much 

or a significant portion of his or her 

childhood. 

Section 410.302(e) lists the conditions 

and principles of release. 

ORR also invites public comment on 

whether to set forth in the final rule 

ORR’s general policies concerning the 

following: 

• Requirements for home studies (see 

8 U.S.C. 1232(c)(3)(B) for statutory 

requirements for a home study); 

• Denial of release to a prospective 

sponsor, criteria for such denial, and 

appeal; and 

• Post-release services requirements. 

Note: in accordance with the Flores v. 

Sessions July 30, 2018 Court order, ORR 

states in the preamble that it will not 

have a blanket policy of requiring postrelease services to be scheduled prior to 

release—for those UACs who required a 

home study—but will evaluate such 

situations on case-by-case basis, based 

on the particularized needs of the UAC 

as well as the evaluation of the sponsor, 

and whether the suitability of the 

sponsor may depend upon having postrelease services in place prior to any 

release. Because this statement reflects 

an interpretation of what may constitute 

an ‘‘unnecessary’’ delay of release, it is 

not necessary to include the policy on 

post-release services being in place, 

discussed above, explicitly in the 

regulation text, as the requirement for 

release without ‘‘unnecessary delay’’ is 

already included in the substantive rule. 

Current policies are set forth in the UAC 

Policy Guide available at https://

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entering-the-united-statesunaccompanied at: §§ 2.4 through 2.7. 

Proposed 45 CFR 410 Subpart D—What 

Standards Must Licensed Programs 

Meet? 

Proposed 45 CFR 410.400—Purpose of 

This Subpart 

As stated at § 410.400, this subpart 

covers the standards that licensed 

programs must meet in keeping with the 

FSA, as set out in the principles of the 

FSA, including the general principles of 

the settlement agreement of treating all 

minors in custody with dignity, respect, 

and special concern for their particular 

vulnerability. 

Proposed 45 CFR 410.401— 

Applicability of This Subpart 

Section 410.401 states that the subpart 

applies to all licensed programs. 

Proposed 45 CFR 410.402—Minimum 

Standards Applicable to Licensed 

Programs 

Section 410.402 reflects the minimum 

standards of care listed in Exhibit 1 of 

the FSA. ORR expects licensed 

programs to easily meet those minimum 

standards and, in addition, to strive to 

provide additional care and services to 

the UACs in their care. The 

requirements of 410.402 are consistent 

with the Flores v. Sessions Court Order 

of July 30, 2018, as they require that 

licensed programs comply with 

applicable state child welfare laws and 

regulations, and that UACs be permitted 

to ‘‘talk privately on the phone, as 

permitted by the house rules and 

regulations.’’ 

Proposed 45 CFR 410.403—Ensuring 

That Licensed Programs are Providing 

Services as Required by These 

Regulations 

Section 410.403 describes how ORR 

ensures that licensed programs are 

providing services as required by these 

regulations. As stated in this section, to 

ensure that licensed programs 

continually meet the minimum 

standards and are consistent in their 

provision of services, ORR monitors 

compliance with these rules. The FSA 

does not contain standards for how 

often monitoring shall occur, and this 

regulation does not propose to do so. At 

present, ORR provides further 

information on such monitoring in 

section 5.5 of the ORR Policy Guide 

(available at: https://www.acf.hhs.gov/ 

orr/resource/children-entering-theunited-states-unaccompanied-section5#5.5). 

Proposed 45 CFR 410 Subpart E— 

Provisions for Transportation of an 

Unaccompanied Alien Child 

This subpart concerns the safe 

transportation of a UAC while he or she 

is in ORR’s custody. 

Proposed 45 CFR 410.500—Purpose of 

This Subpart 

Section 410.500 describes how 

transportation is conducted for a UAC 

in ORR’s custody. The FSA has two 

provisions that govern transportation 

specifically, which are incorporated in 

this proposed rule at § 410.501. First, a 

UAC cannot be transported with 

unrelated detained adults. Second, ORR 

assists in making transportation 

arrangements when ORR plans to 

release a UAC under the sponsor 

suitability provisions, and ORR may, in 

its discretion, provide transportation to 

a UAC. 

Proposed 45 CFR 410 Subpart F, 

Transfer of an Unaccompanied Alien 

Child 

This subpart sets forth the provisions 

for transferring a UAC between HHS 

facilities. In some cases, ORR may need 

to change the placement of a UAC. This 

may occur for a variety of reasons, 

including a lack of detailed information 

at the time of apprehension, a change in 

the availability of licensed placements, 

or a change in the UAC’s behavior, 

mental health situation, or immigration 

case. 

Proposed 45 CFR 410.600—Principles 

Applicable to Transfer of an 

Unaccompanied Alien Child 

Section 410.600 sets out the 

principles that apply to the transfer of 

a UAC between HHS facilities. The 

transfer of a UAC under the FSA 

concerns mainly two issues: (1) That a 

UAC is transferred with all his or her 

possessions and legal papers, and (2) 

that the UAC’s attorney, if the UAC has 

one, is notified prior to a transfer, with 

some exceptions. This rule adopts the 

FSA provisions concerning transfer of a 

UAC. 

Proposed 45 CFR 410 Subpart G—Age 

Determinations 

This subpart concerns age 

determinations for UACs. 

Proposed 45 CFR 410.700—Conducting 

Age Determinations 

Section 410.700 incorporates both the 

provisions of the TVPRA, 8 U.S.C. 

1232(b)(4), and the requirements of the 

FSA, in setting forth standards for age 

determinations. These take into account 

multiple forms of evidence, including 

the non-exclusive use of radiographs, 

and may involve medical, dental, or 

other appropriate procedures to verify 

age. 

Proposed 45 CFR 410.701—Treatment of 

an Individual Who Appears To Be an 

Adult 

Section 410.701 also accords with the 

FSA and the TVPRA, and states that if 

the procedures of § 410.700 would 

result in a reasonable person concluding 

that an individual is an adult, despite 

his or her claim to be a minor, ORR 

must treat such person as an adult for 

all purposes. As with 410.700, ORR may 

take into account multiple forms of 

evidence, including the non-exclusive 

use of radiographs, and may require 

such an individual to submit to a 

medical or dental examination 

conducted by a medical professional or 

other appropriate procedures to verify 

age. 

Proposed 45 CFR 410 Subpart H, 

Unaccompanied Alien Children’s 

Objections to ORR Determinations 

This subpart concerns objections of a 

UAC to ORR placement. 

Proposed 45 CFR 410.800–801— 

Procedures 

While the FSA at Paragraph 24(B) and 

24(C) contains procedures for judicial 

review of a UAC’s placement in shelter 

(including in secure or staff-secure), and 

a standard of review, the agreement is 

clear that a reviewing federal district 

court must have both ‘‘jurisdiction and 

venue.’’ Also, once these regulations are 

finalized and the FSA is terminated, it 

would be even clearer that any review 

by judicial action must occur under a 

statute where the government has 

waived sovereign immunity, such as the 

Administrative Procedure Act. 

Therefore, we are not proposing 

regulations for most of paragraphs 24(B) 

and 24(C) of the FSA, although we do 

propose that all UACs will continue to 

receive a notice stating as follows: 

‘‘ORR usually houses persons under 

the age of 18 in an open setting, such 

as a foster or group home, and not in 

detention facilities. If you believe that 

you have not been properly placed or 

that you have been treated improperly, 

you may call a lawyer to seek assistance. 

If you cannot afford a lawyer, you may 

call one from the list of free legal 

services given to you with this form.’’ 

The proposed rule also contains a 

requirement parallel to that of the FSA 

that when UACs are placed in a more 

restrictive level of care, such as a secure 

or staff secure facility, they receive a 

notice—within a reasonable period of 

time—explaining the reasons for 

housing them in the more restrictive 


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level of care. In addition, the proposed 

rule is consistent with the July 30, 2018 

order of the Flores court by stating that 

the notice must be in a language the 

UAC understands. 

Finally, consistent with the FSA, the 

proposed provision requires that ORR 

promptly provide each UAC not 

released with a list of free legal services 

providers compiled by ORR and that is 

provided to UAC as part of a Legal 

Resource Guide for UAC (unless 

previously given to the UAC). 

Proposed 45 CFR 410.810 ‘‘810 

Hearings’’ 

The proposed rule makes no 

provision for immigration judges 

employed by the DOJ to conduct bond 

redetermination hearings for UACs 

under paragraph 24(A) of the FSA. It is 

not clear statutory authority for DOJ to 

conduct such hearings still exists, and 

indeed DOJ argued in the Ninth Circuit 

that it does not. In the HSA, Congress 

assigned responsibility for the ‘‘care and 

placement’’ of UACs to HHS’s ORR, and 

specifically barred ORR from requiring 

‘‘that a bond be posted for [a UAC] who 

is released to a qualified sponsor.’’ 6 

U.S.C. 279(b)(1)(A), (4). In the TVPRA, 

Congress reaffirmed HHS’s 

responsibility for the custody and 

placement of UACs. 8 U.S.C. 1232(b)(1), 

(c). The TVPRA also imposed detailed 

requirements governing ORR’s release of 

UACs to proposed custodians— 

including, for example, a provision 

authorizing ORR to consider a UAC’s 

dangerousness and risk of flight in 

making placement decisions. 8 U.S.C. 

1232(c)(2)(A). Congress thus appears to 

have vested HHS, not DOJ, with control 

over the custody and release of UACs, 

and to have deliberately omitted any 

role for immigration judges in this area. 

In Flores v. Sessions, the U.S. Court 

of Appeals for the Ninth Circuit 

nonetheless concluded that neither the 

HSA nor the TVPRA superseded the 

FSA’s bond-hearing provision. 862 F.3d 

at 881. But the court did not identify 

any affirmative statutory authority for 

immigration judges employed by DOJ to 

conduct the bond hearings for UACs 

required by paragraph 24(A) of the FSA. 

‘‘[A]n agency literally has no power to 

act . . . unless and until Congress 

confers power upon it.’’ La. Pub. Serv. 

Comm’n v. FCC, 476 U.S. 355, 374 

(1986). HHS, however, as the legal 

custodian of UACs who are in federal 

custody, clearly has the authority to 

conduct the hearings envisioned by the 

FSA and in accordance with the court’s 

ruling in Flores v. Sessions. It also is 

more sensible, as a policy matter, for the 

same agency (HHS) charged with 

responsibility for custody and care of 

UACs also to conduct the hearings 

envisioned by the FSA. 

This rule in turn proposes HHS 

regulations to afford the same type of 

hearing paragraph 24(A) calls for, and to 

recognize the transfer of responsibility 

of care and custody of UAC from the 

former INS to HHS ORR. Specifically, 

rather than providing for DOJ-employed 

immigration judges to preside over these 

hearings, this rule includes provisions 

whereby HHS would create an 

independent hearing officer process that 

would be guided by the immigration 

judge bond hearing process currently in 

place for UACs under the FSA. The 

basic idea would be to provide 

essentially the same substantive 

protections, but through a neutral 

adjudicator at HHS rather than DOJ. 

This proposed rule implements the 

FSA’s substantive protections, and 

responds to the HSA and TVPRA and 

the transfer of responsibility for UACs, 

when they are in government custody, 

to HHS. The reasonable method of 

reconciling paragraph 24(A) of the FSA 

with the HSA and TVPRA, is for the 

Secretary of HHS to appoint an 

independent hearing officer or officers 

who would conduct the hearings 

envisioned by the FSA for those UAC 

who qualify for such review. 

Under this proposal, the Secretary 

would appoint independent hearing 

officers to determine whether a UAC, if 

released, would present a danger to 

community (or flight risk). The hearing 

officer would not have the authority to 

release a UAC, as the Flores court has 

already recognized that Paragraph 24(A) 

of the FSA does not permit a 

determination over the suitability of a 

sponsor. Specifically, in reviewing this 

issue, the Ninth Circuit explained ‘‘as 

was the case when the Flores Settlement 

first went into effect, [a bond hearing] 

permits a system under which 

unaccompanied minors will receive 

bond hearings, but the decision of the 

immigration judge will not be the sole 

factor in determining whether and to 

whose custody they will be released. 

Immigration judges may assess whether 

a minor should remain detained or 

otherwise in the government’s custody, 

but there must still be a separate 

decision with respect to the 

implementation of the child’s 

appropriate care and custody.’’ Flores, 

862 F.3d at 878. Similarly, the district 

court stated: ‘‘To be sure, the TVPRA 

addresses the safety and secure 

placement of unaccompanied children 

. . . . But identifying appropriate 

custodians and facilities for an 

unaccompanied child is not the same as 

answering the threshold question of 

whether the child should be detained in 

the first place—that is for an 

immigration judge at a bond hearing to 

decide . . . . Assuming an immigration 

judge reduces a child’s bond, or decides 

he or she presents no flight risk or 

danger such that he needs to remain in 

HHS/ORR custody, HHS can still 

exercise its coordination and placement 

duties under the TVPRA.’’ Flores v. 

Lynch, No. CV 85–4544 DMG at 6 (C.D. 

Cal. Jan. 20, 2017). 

Thus, the hearing officer would 

decide only the issues presented by 

paragraph 24(A) of the FSA—whether 

the UAC would present a danger to the 

community or a risk of flight (that is, not 

appearing for his or her immigration 

hearing) if released. For the majority of 

children in ORR custody, ORR has 

determined they are not a danger and 

therefore has placed them in shelters, 

group homes, and in some cases, staff 

secure facilities. For these children, a 

hearing is not necessary or even 

beneficial, and would simply be a 

misuse of limited government resources. 

However, for some children placed in 

secure facilities, the hearing may assist 

them in ultimately being released from 

ORR custody in the event a suitable 

sponsor is or becomes available. 

As is the case now, under section 2.9 

of the ORR Policy Guide (available at: 

https://www.acf.hhs.gov/orr/resource/ 

children-entering-the-united-statesunaccompanied-section-2#2.9), the 

hearing officer’s decision that the UAC 

is not a danger to the community will 

supersede an ORR determination on that 

question. While currently, immigration 

judge decisions on such issues may be 

appealed to the Board of Immigration 

Appeals (BIA), HHS does not have a 

two-tier administrative appellate system 

that mirrors the immigration judge-BIA 

hierarchy. To provide similar 

protections without such a rigid 

hierarchy, this proposed rule would 

allow appeal to the Assistant Secretary 

of ACF (if the appeal is received by the 

Assistant Secretary within 30 days of 

the original hearing officer decision). 

The Assistant Secretary would review 

factual determinations using a clearly 

erroneous standard, and review legal 

determinations on a de novo basis. In 

such cases, where ORR appeals to the 

Assistant Secretary of ACF, there would 

be no stay of the hearing officer’s 

decision unless the Assistant Secretary 

finds, within 5 business days of the 

hearing officer decision, that a failure to 

stay the decision would result in a 

significant danger to the community 

presented by the UAC. The written stay 

decision would be based on clear 

behaviors of the UAC while in care, 

and/or documented criminal or juvenile 

behavior records from the UAC. 


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23The Flores District Court specifically cited the 

law of 8 U.S.C. 1226 and 8 CFR 1003.19, 1236.1(d). 

See Flores v. Sessions, 2:85–cv–04544, supra at 2, 

6. 

Otherwise, a hearing officer’s decision 

that a UAC would not be dangerous (or 

a flight risk) if released, would mean 

that as soon as ORR determined a 

suitable sponsor (or if ORR has done so 

already) it must release in accordance 

with its ordinary procedures on release. 

Under current Flores hearing rules, 

and in accordance with the Flores 

district court’s order analogizing Flores 

hearings to bond hearings for adults, 

immigration judges apply the standard 

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

2006).23 Thus, the burden is on the UAC 

to demonstrate that he or she would not 

be a danger to the community (or flight 

risk) if released. However, due to the 

unique vulnerabilities of children and 

subsequent enactment of the TVPRA, 

we request comments on whether the 

burden of proof should be on ORR to 

demonstrate that the UAC would be a 

danger or flight risk if released. As is the 

case currently, the standard would be a 

‘‘preponderance’’ of the evidence. 

ORR also would take into 

consideration the hearing officer’s 

decision on a UAC’s level of danger 

when assessing the UAC’s placement 

and conditions of placement, but the 

hearing officer would not have the 

authority to order a particular 

placement for a UAC. 

Requests for a hearing under this 

section (an ‘‘810 hearing’’) could be 

made by the child in ORR care, by a 

legal representative of the child, or by 

parents/legal guardians on their child’s 

behalf. These parties could submit a 

written request for the 810 hearing to 

the care provider using the ORR form 

(See https://www.acf.hhs.gov/sites/ 

default/files/orr/request_for_a_flores_

bond_hearing_01_03_2018e.pdf (last 

visited Aug. 12, 2018)), or through a 

separate written request that provides 

the information requested in the form. 

ORR would provide a notice of the right 

to request the 810 hearing to UACs in 

secure and staff secure facilities. ORR 

also expects that the hearing officer 

would create a process for UACs or their 

representatives to directly request a 

hearing to determine danger (or flight 

risk). During the 810 hearing, the UAC 

could choose to be represented by a 

person of his or her choosing, at no cost 

to the government. The UAC could 

present oral and written evidence to the 

hearing officer and could appear by 

video or teleconference. ORR could also 

choose to present evidence either in 

writing, or by appearing in person, or by 

video or teleconference. 

Because the 810 hearing process 

would be unique to ORR and HHS, if a 

UAC turns 18 years old during the 

pendency of the hearing, the 

deliberations would have no effect on 

DHS detention (if any). 

If the hearing officer determines that 

the UAC would be a danger to the 

community (or a flight risk) if released, 

the decision would be final unless the 

UAC later demonstrates a material 

change in circumstances to support a 

second request for a hearing. Similarly, 

because ORR may not have yet located 

a suitable sponsor at the time a hearing 

officer issues a decision, ORR 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, the 

proposed regulation states that ORR 

may request the hearing officer to make 

a new determination if at least one 

month has passed since the original 

decision, and ORR can show that a 

material change in circumstances means 

the UAC should no longer be released 

due to danger (or flight risk). 

HHS invites public comment on 

whether the hearing officers for the 810 

hearings should be employed by the 

Departmental Appeals Board, either as 

Administrative Law Judges or hearing 

officers, or whether HHS would create 

a separate office for hearings, similar to 

the Office of Hearings in the Centers for 

Medicare & Medicaid Services. See 

https://www.cms.gov/About-CMS/ 

Agency-Information/CMSLeadership/ 

Office_OHI.html. 

Furthermore, while the FSA contains 

procedures for judicial review of a 

UAC’s placement in a secure or staffsecure shelter, and a standard of review, 

once these regulations are finalized and 

the FSA is vacated, any review by 

judicial actions would occur in 

accordance with the Administrative 

Procedure Act and any other applicable 

Federal statute. Therefore, we are not 

proposing regulations for most of 

paragraphs 24(B) and 24(C) of the FSA. 

VI. Statutory and Regulatory 

Requirements 

The Departments have considered 

numerous statutes and executive orders 

related to rulemaking. The following 

sections summarize our analyses based 

on a number of these statutes and 

executive orders. 

A. Executive Orders 12866 and 13563: 

Regulatory Review 

Executive Orders 12866 (‘‘Regulatory 

Planning and Review’’) and 13563 

(‘‘Improving Regulation and Regulatory 

Review’’) direct agencies to assess the 

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). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. OMB has 

designated this rule a significant 

regulatory action, although not an 

economically significant regulatory 

action, under Executive Order 12866. 

Accordingly, OMB has reviewed this 

regulation. 

(1) Background and Purpose of the 

Proposed Rule 

These proposed regulations aim to 

terminate the FSA. They would codify 

current requirements of the FSA and 

court orders enforcing terms of the FSA, 

as well as relevant provisions of the 

HSA and TVPRA. The Federal 

government’s care of minors and UACs 

has complied with the FSA and related 

court orders for over 20 years, and 

complies with the HSA and TVPRA. 

The proposed rule applies to minors 

and UACs encountered by DHS, and in 

some cases, their families. CBP and ICE 

encounter minors and UACs in different 

manners. CBP generally encounters 

minors and UACs at the border. 

Generally, ICE encounters minors either 

upon transfer from CBP to an FRC, or 

during interior enforcement actions. ICE 

generally encounters UACs when they 

are transferred from CBP custody to 

ORR custody, as well as during interior 

enforcement actions. 

CBP 

CBP’s facilities at Border Patrol 

stations and ports of entry (POEs) are 

processing centers, designed for the 

temporary holding of individuals. CBP 

facilities are designed to meet the 

primary mission of CBP, which is to 

facilitate legitimate travel and trade. 

CBP’s facilities are not designed, nor are 

there services in place, to accommodate 

large numbers of minors and UACs 

waiting for transfer to ICE or ORR, even 

for the limited period for which CBP is 

generally expected to have custody of 

minors and UACs, generally 72 hours or 

less. All minors and UACs in CBP 

facilities are provided access to safe and 

sanitary facilities; functioning toilets 

and sinks; food; drinking water; 

emergency medical assistance, as 

appropriate; and adequate temperature 

control and ventilation. To ensure their 

safety and well-being, UACs in CBP 

facilities are supervised and are 

generally segregated from unrelated 


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adults; older, unrelated UACs are 

generally segregated by gender. 

CBP has apprehended or encountered 

61,610 minors accompanied by their 

parent(s) or legal guardian(s) (defined as 

a ‘‘family unit’’), and 55,090 UACs on 

average annually for the last three fiscal 

years. In Fiscal Year 2017, CBP 

apprehended or encountered 

approximately 105,000 aliens as part of 

a family unit. Table 2 shows the annual 

number of accompanied minors (that is, 

minors accompanied by their parent(s) 

or legal guardian(s)) and UACs CBP has 

apprehended or encountered in Fiscal 

Years (FYs) 2010 through 2017. 

TABLE 2—U.S. CUSTOMS AND BORDER PROTECTION ACCOMPANIED MINORS AND UNACCOMPANIED ALIEN CHILDREN

NATIONWIDE APPREHENSIONS AND ENCOUNTERS FY 2010–FY 2017 

Fiscal year Accompanied 

minors UACs Total 

2010 ............................................................................................................................................. 22,937 19,234 42,171 

2011 ............................................................................................................................................. 13,966 17,802 31,768 

2012 ............................................................................................................................................. 13,314 27,031 40,345 

2013 ............................................................................................................................................. 17,581 41,865 59,446 

2014 ............................................................................................................................................. 55,644 73,421 129,065 

2015 ............................................................................................................................................. 45,403 44,910 90,313 

2016 ............................................................................................................................................. 74,798 71,067 145,865 

2017 ............................................................................................................................................. 64,628 49,292 113,920 

CBP makes a case by case 

determination as to whether an alien is 

a UAC based upon the information and 

evidence available at the time of 

encounter. When making this 

determination, CBP refers to section 

462(g)(2) of the HSA, which defines a 

UAC 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. 

Once CBP determines that an alien is 

a UAC, CBP must process the UAC 

consistent with the provisions of the 

TVPRA, which requires the transfer of a 

UAC who is not statutorily eligible to 

withdraw his or her application for 

admission into the custody of ORR 

within 72 hours of determining that the 

juvenile meets the definition of a UAC, 

except in exceptional circumstances. 

If, upon apprehension or encounter, 

CBP determines that an alien is a minor 

who is part of a family unit, the family 

unit is processed accordingly and 

transferred out of CBP custody. If 

appropriate, the family unit may be 

transferred to an ICE FRC. If the FSA 

were not in place, CBP would still make 

a determination of whether an alien was 

a UAC or part of a family unit upon 

encountering an alien, in order to 

determine appropriate removal 

proceedings pursuant to the TVPRA. 

ICE 

When ICE encounters a juvenile 

during an interior enforcement action, 

ICE performs an interview to determine 

the juvenile’s nationality, immigration 

status, and age. Pursuant to the TVPRA, 

an alien who has been encountered and 

has no lawful immigration status in the 

United States, has not attained 18 years 

of age, and has no parent or legal 

guardian in the United States available 

to provide care and physical custody 

will be classified as a UAC. The number 

of juvenile arrests made by ICE is 

significantly smaller than CBP across all 

fiscal years as shown in Table 3. An 

individual would have to be arrested to 

be booked into an FRC. 

TABLE 3—FY 14–FY 17 JUVENILE BOOK-INS WITH ICE AS ARRESTING AGENCY

Fiscal year 

Book-ins of 

accompanied 

minors 

UAC 

Book-ins 

2014 ......................................................................................................................................................................... 3 285 

2015 ......................................................................................................................................................................... 8 200 

2016 ......................................................................................................................................................................... 108 164 

2017 ......................................................................................................................................................................... 123 292 

Once ICE determines that an alien is 

a UAC, ICE must process the UAC 

consistent with the provisions of the 

TVPRA, which requires the transfer of a 

UAC into the custody of ORR within 72 

hours of determining that the juvenile 

meets the definition of a UAC, except in 

exceptional circumstances. 

At the time that the FSA was agreed 

to in 1997, INS generally did not detain 

alien family units. Instead, family units 

apprehended or encountered at the 

border were generally released. When a 

decision was made to detain an adult 

family member, the other family 

members were generally separated from 

that adult. However, beginning in 2001, 

in an effort to maintain family unity, 

INS began opening FRCs to 

accommodate families who were 

seeking asylum but whose cases had 

been drawn out. INS initially opened 

what today is the Berks Family 

Residential Center (Berks) in Berks, 

Pennsylvania, in 2001. ICE also 

operated the T. Don Hutto mediumsecurity facility in Taylor, Texas as an 

FRC from 2006 to 2009. In response to 

the influx of UACs and family units in 

2014 in the Rio Grande Valley, ICE 

opened family residential centers in 

Artesia, New Mexico in June of 2014; 

Karnes County, Texas in July of 2014; 

and Dilley, Texas in December of 2014. 

The Artesia facility, which was 

intended as a temporary facility while 

more permanent facilities were 

contracted for and established, was 

closed on December 31, 2014. 

The South Texas Family Residential 

Center in Dilley, Texas (Dilley) has 

2,400 beds, Berks has 96 beds, and the 


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24For the purposes of this table, Voluntary Return 

refers to the DHS grant of permission for an alien 

to depart the United States, while Voluntary 

Departure refers to the immigration judge’s grant of 

permission for an alien to depart the United States. 

Karnes County Residential Center in 

Karnes County, Texas (Karnes) has 830 

beds. The capacity of the three FRCs 

provide for a total of 3,326 beds. As a 

practical matter, given varying family 

sizes and compositions, and housing 

standards, not every available bed will 

be filled at any given time, and the 

facilities may still be considered to be 

at capacity even if every available bed 

is not filled. ICE did not maintain a 

consistent system of records of FRC 

intakes until July 2014. Since 2015, 

there has been an annual average of 

31,458 intakes of adults and minors at 

the FRCs. The count of FRC intakes 

from July 2014 through FY 2017 is 

shown in Table 4. 

TABLE 4—FAMILY RESIDENTIAL CENTER (FRC) INTAKES FY 2014–FY 2017 

Fiscal year FRC 

intakes 

FRC adult 

intakes 

FRC minor 

intakes 

Q4 2014 * ..................................................................................................................................... 1,589 711 878 

2015 ............................................................................................................................................. 13,206 5,964 7,242 

2016 ............................................................................................................................................. 43,342 19,452 23,890 

2017 ............................................................................................................................................. 37,825 17,219 20,606 

* 2014 only includes the fourth quarter of FY 2014: July, August, and September. 

As previously discussed, due to court 

decisions in 2015 and 2017, DHS 

ordinarily uses its FRCs for the 

detention of non-UAC minors and their 

accompanying parent(s) or legal 

guardian(s) for periods of up to 

approximately 20 days. Since 2016, the 

average number of days from the bookin date to the release date at all FRCs for 

both minors and adults has been less 

than 15 days. Table 5 shows the average 

number of days from book-in date to 

release date at FRCs for FY 2014 

through FY 2017, based on releases by 

fiscal year. Data on releases are available 

for all four quarters of FY 2014. 

TABLE 5—AVERAGE NUMBER OF DAYS FROM BOOK-IN DATE TO RELEASE DATE AT FAMILY RESIDENTIAL CENTERS FY 

2014–FY 2017 

Fiscal year 

Average 

number 

of days 

Average days 

for minors 

(<18 years 

old) 

Average days 

for adults 

(≥18 years 

old) 

2014 ............................................................................................................................................. 47.4 46.7 48.4 

2015 ............................................................................................................................................. 43.5 43.1 44.0 

2016 ............................................................................................................................................. 13.6 13.6 13.6 

2017 ............................................................................................................................................. 14.2 14.2 14.1 

Table 6 shows the reasons for the 

release of adults and minors from FRCs 

in FY 2017. As it indicates, the large 

majority of such individuals were 

released on an order of their own 

recognizance or paroled. 

TABLE 6—FY 2017 REASONS FOR

RELEASE

[Adults and minors] 

Reason for release Percent 

Order of Recognizance ........ 76.9 

Paroled ................................. 21.3 

Order of Supervision ............ 1.7 

Bonded Out .......................... 0.1 

Prosecutorial Discretion ........ <0.0 

Table 7 shows the number of adults 

and minors removed from the United 

States from FRCs since FY 2014. 

Removals include returns. Returns 

include Voluntary Departures 

(including Voluntary Returns) 24 and 

Withdrawals Under Docket Control. 

TABLE 7—REMOVALS FROM FRCS FY 

2014–FY 2017 

[Adults and minors] 

Fiscal year Removals 

Q4 2014 * .............................. 390 

2015 ...................................... 430 

2016 ...................................... 724 

2017 ...................................... 977 

* 2014 only includes the fourth quarter of FY 

2014: July, August, and September. 

The FSA does not impose 

requirements on secure facilities used 

for the detention of juveniles. Juveniles 

may be placed in secure facilities if they 

meet the criteria listed in paragraph 21 

of the FSA. 

HHS 

The proposed rule also applies to 

UACs who have been transferred to 

HHS care. Upon referral, HHS promptly 

places UACs 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. HHS takes into 

consideration the unique nature of each 

child’s situation and incorporates child 

welfare principles when making 

placement and release decisions that are 

in the best interest of the child. 

HHS places UACs in a network of 

over 100 shelters in 17 states. For its 

first nine years at HHS, fewer than 8,000 

UACs were served annually in this 

program. Since FY 2012, this number 

has jumped dramatically, with a total of 

13,625 children referred to HHS by the 

end of FY 2012. Between FY 2012 and 

FY 2018—Year To Date (YTD) (June), 

HHS has received a total of 267,354 

UACs. 

TABLE 8—UAC REFERRALS TO HHS 

FY 2008–FY 2017 

Fiscal year Referrals 

2008 ...................................... 6,658 

2009 ...................................... 6,089 

2010 ...................................... 7,383 

2011 ...................................... 6,560 

2012 ...................................... 13,625 

2013 ...................................... 24,668 

2014 ...................................... 57,496 

2015 ...................................... 33,726 


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TABLE 8—UAC REFERRALS TO HHS 

FY 2008–FY 2017—Continued 

Fiscal year Referrals 

2016 ...................................... 59,170 

2017 ...................................... 40,810 

For FY 2018—YTD (June) the average 

length of stay (the time a child is in 

custody from the time of admission to 

the time of discharge) for UACs in the 

program is approximately 50 days. In 

FY 2018—June ’18 the average length of 

care (the time a child has been in 

custody, since the time of admission) for 

UACs in ORR care is approximately 58 

days. The overwhelming majority, over 

90 percent, of UACs are released to 

suitable sponsors who are family 

members within the United States. 

UACs that are not released to a sponsor 

typically: Age out or receive an order of 

removal and are transferred to DHS; are 

granted voluntary departure and 

likewise transferred to DHS for removal; 

or, obtain immigration legal relief and 

are no longer eligible for placement in 

ORR’s UAC program. 

TABLE 9—PERCENTAGE OF UACS BY

DISCHARGE TYPE FY 18 

[Through June 30th] 

Discharge type Percentage of 

UACs 

Age Out ................................ 3.5 

Age Redetermination ............ 2.3 

Immigration Relief Granted .. 0.2 

Local Law Enforcement ........ 0.0 

Ordered Removed ................ 0.2 

Other ..................................... 0.3 

Runaway from Facility .......... 0.4 

Runaway on Field Trip ......... 0.1 

Reunified (Individual Sponsor) .................................... 90.0 

Reunified (Program/Facility) 1.3 

Voluntary Departure ............. 1.9 

Total .................................. 100.0 

(2) 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.’’ The Departments 

consider their current operations and 

procedures for implementing the terms 

of the FSA, the HSA, and the TVPRA to 

be the baseline for this analysis, from 

which they estimate the costs and 

benefits of the proposed rule. The 

baseline encompasses the FSA that was 

approved by the court on January 28, 

1997. It also encompasses the 2002 HSA 

legislation transferring the 

responsibility for the care and custody 

of UACs, including some of the material 

terms of the FSA, to ORR, as well as the 

substantive terms of the 2008 TVPRA. 

Finally, it includes the July 6, 2016 

decision of the Ninth Circuit affirming 

the district court’s finding that the FSA 

‘‘unambiguously’’ applies to both 

accompanied and unaccompanied 

minors, and that such minors shall not 

be detained in unlicensed and secure 

facilities that do not meet the 

requirements of the FSA. See Flores v. 

Lynch, 828 F.3d 898 (9th Cir. 2016). The 

section below discusses some examples 

of the current cost for the Departments’ 

operations and procedures under the 

baseline. Because the costs described 

below are already being incurred, they 

are not costs of this rule. 

DHS 

CBP incurs costs to comply with the 

FSA, including those related to facility 

configurations, custodial requirements, 

and compliance monitoring. To comply 

with the terms of the FSA, for example, 

CBP reallocates space in its facilities to 

allow for separate holding areas for 

families and/or UACs. Pursuant to the 

FSA, CBP provides minors and UACs 

access to food; drinking water; 

functioning toilets and sinks; adequate 

temperature and ventilation; emergency 

medical care, if needed; and safe and 

sanitary facilities, which impose costs 

on CBP. Related costs include, for 

example, the purchase of food; bottled 

water; first aid kits; blankets, mats, or 

cots; and age-appropriate transport and 

bedding. To ensure compliance with the 

FSA, CBP has added fields in its 

electronic systems of records, so that 

CBP officers and Border Patrol agents 

can continuously record the conditions 

of the hold rooms and all custodial 

activities related to each minor or UAC, 

such as medical care provided, welfare 

checks conducted, and any separation 

from accompanying family members. 

CBP has experienced other baseline 

costs from its national and field office 

Juvenile Coordinators. Under current 

practice, the national CBP Juvenile 

Coordinator oversees agency 

compliance with applicable law and 

policy related to the treatment of minors 

and UACs in CBP custody. The national 

CBP Juvenile Coordinator monitors CBP 

facilities and processes through site 

visits and review of juvenile custodial 

records. Along with the national CBP 

Juvenile Coordinator role, CBP has field 

office and sector Juvenile Coordinators 

who are responsible for managing all 

policies on the processing of juveniles 

within CBP facilities, coordinating 

within CBP and across DHS components 

to ensure the expeditious placement and 

transport of juveniles placed into 

removal proceedings by CBP, and 

informing CBP operational offices of any 

policy updates related to the processing 

of juveniles (e.g., through 

correspondence, training presentations). 

Moreover, CBP’s Juvenile Coordinators 

serve as internal and external agency 

liaisons for all juvenile processing 

matters. 

CBP’s baseline costs also include the 

use of translation services, including 

contracts for telephonic interpretation 

services. 

ICE also incurs facility costs to 

comply with the FSA. The costs of 

operation and maintenance of the ICE 

FRCs for FY 2015–2017 are listed in 

Table 10, provided by the ICE Office of 

Acquisition Management. The costs 

account for the implementation of the 

FSA requirements, including the cost 

for the facility operators to abide by all 

relevant state standards. Two of the 

FRCs are operated by private 

contractors, while one is operated by a 

local government, under contract with 

ICE. These are the amounts that have 

been paid to private contractors or to the 

local government to include beds, 

guards, health care, and education. 

TABLE 10—CURRENT COSTS FOR

FRCS

Fiscal year FRC costs 

2015 ...................................... $323,264,774 

2016 ...................................... 312,202,420 

2017 ...................................... 231,915,415 

The FRC costs are fixed-price 

agreements with variable costs added on 

a monthly basis. Overall, the fixed-price 

agreements are not dependent on the 

number of detainees present or length of 

stay, with some exceptions. At Berks, 

the contract includes a per-person fee 

charged in addition to the monthly fixed 

rate. At two of the FRCs, Berks and 

Karnes, education is provided per the 

standards of a licensed program set forth 

in the FSA, at a per-student, per-day 

cost. Since FRCs are currently at limited 

available capacity and the configuration 

of limited available capacity varies from 

day to day across all FRCs, the number 

of children and adults vary at Berks day 

to day and the number of children at 

Karnes vary day to day. Thus, these 

costs charged to ICE vary from month to 

month. 

In addition to the above example of 

current costs to operate the FRCs, or the 

baseline cost, DHS (particularly CBP 

and ICE) incurs costs to process, 

transfer, and provide transportation of 

minors and UACs from the point of 


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apprehension to DHS facilities; from the 

point of apprehension or from a DHS 

facility to HHS facilities; between 

facilities; for the purposes of release; or 

for all other circumstances, in 

compliance with the FSA, HSA, and 

TVPRA. 

The baseline costs also include bond 

hearing for minors and family units who 

are eligible for such hearings. When a 

minor or family unit seeks a bond, ICE 

officers must review the request and 

evaluate the individuals’ eligibility as 

well as, where appropriate, set the 

initial bond amount. Further, should the 

minor or family unit seek a bond 

redetermination hearing before an 

immigration judge, ICE must transport 

or otherwise arrange for the individuals 

to appear before the immigration court. 

ICE’s baseline costs also include the 

use of translation services, including 

contracts for telephonic interpretation 

services. 

ICE also incurs baseline costs related 

to its Juvenile and Family Residential 

Management Unit (JFRMU), which was 

created in 2007. JFRMU manages ICE’s 

policies affecting alien juveniles and 

families. The role of ICE’s Juvenile 

Coordinator is within JFRMU and is not 

a collateral duty. JFRMU consists of 

specialized federal staff, as well as 

contract subject matter experts in the 

fields of child psychology, child 

development, education, medicine, and 

conditions of confinement. JFRMU 

establishes policies on the management 

of family custody, UACs pending 

transfer to the ORR, and UACs applying 

for Special Immigrant Juvenile specific 

consent. JFRMU continues to pursue 

uniform operations throughout its 

program through implementation of 

family residential standards. These 

standards are continually reviewed and 

revised as needed to ensure the safety 

and welfare of families awaiting an 

immigration decision while housed in a 

family residential facility. DHS 

conducts an inspection of each FRC at 

least annually to confirm that the 

facility is in compliance with ICE 

Family Residential Standards. 

The baseline costs include the 

monitoring of FSA compliance and 

reporting to the court. Since 2007, 

JFRMU has submitted Flores Reports 

annually, bi-annually, or monthly for 

submission to the court through DOJ. 

HHS 

HHS’ baseline costs were $1.4 billion 

in FY 2017. HHS funds private nonprofit and for-profit agencies to provide 

shelter, counseling, medical care, legal 

services, and other support services to 

UACs in custody. Funding levels for 

non-profit organizations totaled 

$912,963,474 in FY 2017. Funding 

levels for for-profit agencies totaled 

$141,509,819 in FY 2017. Program 

funded 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 80 

percent) are for bed capacity care. Other 

services for UACs, such as medical care, 

background checks, and family 

reunification services, make up 

approximately 15 percent of the budget. 

In addition, some funding is provided 

for limited post-release services to 

certain UACs. Administrative expenses 

to carry out the program total 

approximately five percent of the 

budget. 

In FY 2016, HHS total approved 

funding for the UAC program was 

$743,538,991, with $224,665,994 going 

to influx programming. In FY 2017, the 

total funding was $912,963,474, with 

$141,509,819 for influx. 

These are examples of the types of 

costs the Departments incur under 

current operations, and are not a result 

of this rule. 

(3) Costs 

This rulemaking would implement 

the relevant and substantive terms of the 

FSA, with limited changes necessary to 

implement closely related provisions of 

the HSA and TVPRA, and to ensure that 

the regulations set forth a sustainable 

operational model of immigration 

enforcement. This section assesses the 

cost of proposed changes to the current 

operational environment. 

The primary source of new costs for 

the proposed rule would be as a result 

of the proposed alternative licensing 

process, changes to ICE parole 

determination practices to align them 

with applicable statutory and regulatory 

authority, and the costs of shifting 

hearings from DOJ to HHS. The 

proposed alternative license for FRCs 

and changes to parole determination 

practices may result in additional or 

longer detention for certain minors, but 

DHS is unable to estimate the costs of 

this to the Government or to the 

individuals being detained because we 

are not sure how many individuals will 

be detained at FRCs after this rule is 

effective or for how much longer 

individuals may be detained because 

there are so many other variables to 

consider. The Departments seek 

comment on how these costs might be 

reasonably estimated, given the 

uncertainties. 

Table 11 shows the proposed changes 

to the DHS current operational status 

compared to the FSA. It contains a 

preliminary, high-level overview of how 

the proposed rule would change DHS’s 

current operations, for purposes of the 

economic analysis. The table does not 

provide a comprehensive description of 

all proposed provisions and their basis 

and purpose. 

TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS

FSA 

paragraph No. Description of FSA provision DHS cite (8 CFR) DHS change from current practice 

1, 2, 3 ................. ‘‘Party, ‘‘plaintiff’’ and ‘‘class member’’ definitions.N/A .................... None. (Note: These definitions are only relevant to the FSA insofar 

as the FSA exists in the form of a consent decree. Following promulgation of a final rule, the definitions would no longer be relevant. As a result, the proposed rule does not include these definitions.) 

4 ......................... ‘‘Minor’’ definition .......................... 236.3(b)(1) ........ None. 

5 ......................... ‘‘Emancipated minor’’ definition .... 236.3(b)(1)(i) ..... None. 

6 ......................... ‘‘Licensed program’’ definition ...... 236.3(b)(9) ........ FSA defines a ‘‘licensed program’’ as one licensed by an appropriate State agency. DHS would not define ‘‘licensed program,’’ 

but instead would define a ‘‘licensed facility’’ as an ICE detention 

facility that is licensed by the state, county, or municipality in 

which it is located. DHS would also add an alternative licensing 

scheme for family residential centers (FRCs), if the state, county, 

or municipality where the facility is located does not have a licensing scheme for such facilities. 


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TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued 

FSA 

paragraph No. Description of FSA provision DHS cite (8 CFR) DHS change from current practice 

6+ Exhibit 1 ........ Exhibit 1, standards of a licensed 

program.

236.3(i)(4) .......... DHS provides requirements that licensed facilities must meet. (Note: 

Compared with Exhibit 1, these requirements contain a slightly 

broadened educational services description to capture current operations and added that program design should be appropriate for 

length of stay (see (i)(4)(iv)); amended ‘‘family reunification services’’ provision to more appropriately offer communication with 

adult relatives in the U.S. and internationally, since DHS only has 

custody of accompanied minors so reunification is unnecessary 

(see proposed 236.3(i)(4)(iii)(H)).) 

7 ......................... ‘‘Special needs minor’’ definition 

and standard.

236.3(b)(2) ........ None. 

8 ......................... ‘‘Medium security facility’’ definition.N/A .................... None. (Note: DHS only has secure or non-secure facilities, so a definition of ‘‘medium security facility’’ is unnecessary. As a result, 

the proposed rule lacks such a definition, even though the FSA 

contains one.) 

9 ......................... Scope of Settlement Agreement, 

Effective Date, and Publication.

N/A .................... None. (Note: This provision imposes a series of deadlines that 

passed years ago, and/or do not impose obligations on the parties 

that continue following termination of the FSA. As a result, the 

proposed rule does not include this provision.) 

10 ....................... Class Definition ............................. N/A .................... None. (Note: Provision is specific to the litigation and is not a relevant or substantive term of the FSA, and is not included in the 

rule.) 

11 ....................... Place each detained minor in 

least restrictive setting appropriate for age and special 

needs. No requirement to release to any person who may 

harm or neglect the minor or fail 

to present minor before the immigration court.

236.3(g)(2)(i), (i), 

(j)(4).

None. (Note: 236.3(j) tracks FSA paragraph14, which is consistent 

with FSA paragraph 11 but uses different terms.) 

11 ....................... The INS treats, and shall continue 

to treat, all minors in its custody 

with dignity, respect and special 

concern for their particular vulnerability as minors.

236.3(a)(1) ........ None. 

12(A) ................... Expeditiously process the minor .. 236.3(e), (f), & 

(g)(2)(i).

None. (Note: The proposed rule reflects the fact that the TVPRA 

(rather than the FSA) governs the processing and transfer of 

UACs. The proposed rule also makes clear that generally, unless 

an emergency or influx ceases to exist, the transfer timelines associated with an emergency or influx continue to apply for nonUAC minors.) 

12(A) ................... Shall provide the minor with notice of rights.236.3(g)(1)(i) ..... None. 

12(A) ................... Facilities must be safe and sanitary including toilets and sinks, 

water and food, medical assistance for emergencies, temperature control and ventilation, 

adequate supervision to protect 

minor from others.

236.3(g)(2)(i) ..... None 

12(A) ................... Contact with family members who 

were arrested with the minor.

236.3(g)(2)(i) ..... None. (Note: The proposed rule contains a slightly different standard 

than appears in the FSA. The proposed rule provides for contact 

with family members apprehended with both minors and UACs. 

Additionally, the proposed rule invokes operational feasibility and 

consideration of the safety or well-being of the minor or UAC in 

facilitating contact. The FSA generally prioritizes the safety and 

well-being of the minor and that of others, but does not include 

these provisos.) 

12(A) ................... Segregate unaccompanied minors 

from unrelated adults, unless 

not immediately possible (in 

which case an unaccompanied 

minor may not be held with an 

unrelated adult for more than 

24 hours).

236.3(g)(2)(i) ..... None. (Note: The proposed rule would allow UACs to be held with 

unrelated adults for no more than 24 hours except in cases of 

emergency or other exigent circumstances.) 


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TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued 

FSA 

paragraph No. Description of FSA provision DHS cite (8 CFR) DHS change from current practice 

12(A), 12(A)(1)– 

(3), 12(B).

Transfer in a timely manner: 

Three days to five days max 

with exceptions, such as emergency or influx, which requires 

placement as expeditiously as 

possible.

236.3(b)(5), 

(b)(10), (e)(1).

None. (Note: Following the TVPRA, the transfer provisions in FSA 

paragraph 12(A) apply to DHS only for accompanied minors. In 

addition, the proposed rule’s definition of ‘‘emergency’’ clarifies 

that an emergency may create adequate cause to depart from 

any provision of proposed 236.3, not just the transfer timeline.) 

12(A)(4) .............. Transfer within 5 days instead of 

3 days in cases involving transport from remote areas or 

where an alien speaks an ‘‘unusual’’ language.

N/A .................... None. (Note: Although DHS is not proposing a change in practice, it 

does not propose to codify this exception from the FSA in proposed 236.3(e) because operational improvements have rendered 

the exception unnecessary.) 

12(C) .................. Written plan for ‘‘emergency’’ or 

‘‘influx’’.

236.3(e)(2) ........ None. (Note: Like the FSA, the proposed rule requires a written 

plan. The written plan is contained in a range of guidance documents.) 

13 ....................... Age determination ........................ 236.3(c) ............. None. (Note: The proposed rule includes a ‘‘totality of the circumstances’’ standard; the FSA does not contain a standard that 

conflicts with ‘‘totality of the circumstances.’’) 

14 ....................... Release from custody where the 

INS determines that the detention of the minor is not required 

either to secure his or her 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 custody.

236.3(j) (release 

generally).

The proposed rule adds that any decision to release must follow a 

determination that such release is permitted by law, including parole regulations. In addition, the proposed rule does not codify the 

list of individuals to whom a non-UAC minor can be released, because the TVPRA has overtaken this provision. Per the TVPRA, 

DHS does not have the authority to release juveniles to non-parents or legal guardians. Under the TVPRA, DHS may release a 

juvenile to a parent or legal guardian only. 

15 ....................... Before release from custody, 

Form I–134 and agreement to 

certain terms must be executed. If emergency, then minor 

can be transferred temporarily 

to custodian but must notify INS 

in 72 hours.

N/A .................... None. (Note: The proposed rule does not codify this portion of the 

FSA, because (1) the TVPRA has overtaken this provision in part, 

and (2) these requirements, which are primarily for DHS’s benefit, 

are not currently implemented.) 

16 ....................... INS may terminate the custody if 

terms are not met.

N/A .................... None. (Note: The proposed rule does not codify this portion of the 

FSA, because (1) the TVPRA has overtaken this provision in part, 

and (2) these requirements, which are primarily for DHS’s benefit, 

are not currently implemented.) 

17 ....................... Positive suitability assessment ..... N/A .................... None. (Note: The proposed rule does not codify this portion of the 

FSA, because the TVPRA has overtaken this provision. Per the 

TVPRA, DHS does not have the authority to release minors to 

non-parents/legal guardians.) 

18 ....................... INS or licensed program 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.

236.3(j) .............. None. 

19 ....................... INS custody in licensed facilities 

until release or until immigration 

proceedings are concluded. 

Temporary transfers in event of 

an emergency.

236.3(i), (i)(5) .... None. 

20 ....................... INS must publish a ‘‘Program Announcement’’ within 60 Days of 

the FSA’s approval.

N/A .................... None. (Note: This provision imposes a deadline that passed years 

ago. As a result, the proposed rule does not include this provision.) 

21 ....................... Transfer to a suitable State or 

county juvenile detention facility 

if a minor has been charged or 

convicted of a crime with exceptions.

236.3(i)(1) .......... None. (Note: The proposed rule clarifies some of the exceptions to 

secure detention, consistent with current practice and in line with 

the intent underlying FSA paragraph 21(A)(i)–(ii). The proposed 

rule also removes the specific examples used in FSA.) 

22 ....................... Escape risk definition ................... 236.3(b)(6) ........ None. (Note: the proposed rule uses final order of ‘‘removal’’ rather 

than deportation or exclusion, and considers past absconding 

from state or federal custody; and not just DHS or HHS custody.) 

23 ....................... Least restrictive placement of minors available and appropriate.236.3(i)(2) .......... None. 


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TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued 

FSA 

paragraph No. Description of FSA provision DHS cite (8 CFR) DHS change from current practice 

24(A) ................... Bond redetermination hearing afforded.236.3(m) ............ None. (Note: The proposed rule adds language to specifically exclude those aliens for which IJs do not have jurisdiction, as provided in 8 CFR 1003.19.) 

24(B) ................... Judicial review of placement in a 

particular type of facility permitted or that facility does not 

comply with standards in Ex. 1.

N/A .................... None. (Note: The proposed rule does not expressly provide for judicial review of placement/compliance, but does not expressly bar 

such review.) 

24(C) .................. Notice of reasons provided to 

minor not in a licensed program/judicial review.

N/A .................... None. 

24(D) .................. All minors ‘‘not released’’ shall be 

given Form I–770, notice of 

right to judicial review, and list 

of free legal services.

236.3(g)(1) ........ None. (Note: The proposed rule requires DHS to provide the notice 

of right to judicial review and list of counsel to those minors who 

are not UACs and who are transferred to or remain in a DHS detention facility. The corresponding FSA provisions apply to minors 

‘‘not released.’’ The difference in scope is a result of the TVPRA 

and reflects the relationship between Paragraph 12(A), which applies to the provision of certain rights (largely contained on the I– 

770) immediately following arrest, and Paragraph 28(D), which 

applies to all minors who are ‘‘not released,’’ and so are detained 

by DHS. The language does not reflect a change in practice. The 

proposed rule also includes more detailed language with respect 

to the Form I–770 than the FSA; this language comes from current 8 CFR 236.3, and is consistent with the requirements of 

Paragraph 12(A).) 

24(E) ................... Additional information on precursors to seeking judicial review.N/A .................... None. (Note: Responsibilities of the minor prior to bringing litigation 

are not relevant or substantive terms of the FSA, and are not included in the rule.) 

25 ....................... Unaccompanied minors in INS 

custody should 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.

236.3(f)(4) ......... None. (Note: Proposed rule makes a clarifying change: the proposed rule adds ‘‘or unavailable’’ as an exception to ‘‘impractical.’’) 

26 ....................... Provide assistance in making 

transportation arrangement for 

release of minor to person or 

facility to whom released.

236.3(j)(3) .......... None. (Note: The proposed rule would remove the reference to release to a ‘‘facility.’’ DHS releases minors only to a parent or legal 

guardian; a referral to HHS is a transfer, not a release.) 

27 ....................... Transfer between placements with 

possessions, notice to counsel.

236.3(k) ............. None. 

28(A) ................... INS Juvenile Coordinator to monitor compliance with FSA and 

maintain records on all minors 

placed in proceedings and remain in custody for longer than 

72 hours.

236.3(o) ............. None. (Note: The proposed rule requires collection of relevant data 

for purposes of monitoring compliance. The list of data points is 

similar to the list in 28(A) but not identical.) 

28(B) ................... Plaintiffs’ counsel may contact 

INS Juvenile Coordinator to request an investigation on why a 

minor has not been released.

N/A .................... This provision would no longer apply following termination of the 

FSA. (Note: Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the 

rule.) 

29 ....................... Plaintiffs’ counsel must be provided information pursuant to 

FSA paragraph 28 on a semiannual basis; Plaintiffs’ counsel 

have the opportunity to submit 

questions.

N/A .................... This provision would no longer apply following termination of the 

FSA. (Note: Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the 

rule.) 

30 ....................... INS Juvenile Coordinator must report to the court annually.N/A .................... This provision would no longer apply following termination of the 

FSA. (Note: Special provisions for reporting to the court are not 

relevant or substantive terms of the FSA, and are not included in 

the rule.) 

31 ....................... Defendants can request a substantial compliance determination after one year of the FSA.N/A .................... None. (Note: This provision imposed a timeframe related to court 

supervision of the FSA. As a result, the proposed rule does not 

include this provision.) 

32(A), (B), and 

(D).

Attorney-client visits with class 

members allowed for Plaintiffs’ 

counsel at a facility.

N/A .................... Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule. 


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25See the discussion of the definition of 

‘‘licensed facility’’ supra. 

TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued 

FSA 

paragraph No. Description of FSA provision DHS cite (8 CFR) DHS change from current practice 

32(C) .................. Agreements for the placement of 

minors in non-INS facilities shall 

permit attorney-client visits, including by class counsel.

236.3(i)(4)(xv) .... None. (Note: Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, so the reference to class 

counsel is not included in the rule.) 

33 ....................... Plaintiffs’ counsel allowed to request access to, and visit licensed program facility or medium security facility or detention facility.N/A .................... Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule. 

34 ....................... INS employees must be trained 

on FSA within 120 days of court 

approval.

N/A .................... None. (Note: This provision imposed a deadline that passed years 

ago. As a result, the proposed rule does not include this provision.) 

35 ....................... Dismissal of action after court has 

determined substantial compliance.

N/A .................... None. (Note: Provisions specific to terminating the action are not relevant or substantive terms of the FSA, and are not included in the 

rule.) 

36 ....................... Reservation of Rights ................... N/A .................... 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. As a result, 

the proposed rule does not include this provision.) 

37 ....................... Notice and Dispute Resolution ..... N/A .................... None. (Note: This provision provides for ongoing enforcement of the 

FSA by the district court. As a result, the proposed rule does not 

include this provision.) 

38 ....................... Publicity—joint press conference N/A .................... None. (Note: This provision relates to an event that occurred years 

ago. As a result, the proposed rule does not include this provision.) 

39 ....................... Attorneys’ Fees and Costs ........... N/A .................... None. (Note: This provision imposed a deadline that passed years 

ago. As a result, the proposed rule does not include this provision.) 

40 ....................... Termination 45 days after publication of final rule.N/A .................... None. (Note: Provisions specific to terminating the FSA are not relevant or substantive terms, and are not included in the rule.) 

41 ....................... Representations and Warranty ..... N/A .................... 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. As a result, 

the proposed rule does not include this provision.) 

DHS 

A primary source of new costs for the 

proposed rule would be as a result of 

the proposed alternative licensing 

process. To codify the requirements of 

the FSA, DHS is proposing in this rule 

that facilities that hold minors obtain 

state, county, or municipal licensing 

where appropriate licenses are 

available. If no such licensing regime is 

available, however, DHS proposes that it 

will employ an outside entity to ensure 

that the facility complies with family 

residential standards established by ICE 

and that meet the requirements for 

licensing under the FSA, thus fulfilling 

the intent of obtaining a license from a 

state or local agency. That would thus 

provide effectively the same substantive 

assurances that the state-licensing 

requirement exists to provide. ICE 

currently meets the proposed licensing 

requirements by requiring FRCs to 

adhere to the Family Residential 

Standards and monitoring the FRCs’ 

compliance through an existing 

contract. Thus, DHS would not incur 

additional costs in fulfilling the 

requirements of the proposed alternative 

licensing scheme. However, most states 

do not offer licensing for facilities like 

the FRCs.25 Therefore, to meet the terms 

of the FSA, minors who are not UACs 

are generally held in FRCs for less than 

20 days (see Table 5). As all FRCs would 

be licensed, or considered licensed, 

under this proposed rule, the proposed 

rule may result in extending detention 

of some minors, and their 

accompanying parent or legal guardian, 

in FRCs beyond 20 days. An increase in 

the average length of detention may 

increase the variable contract costs paid 

by ICE to the private contractor and 

government entity who operate and 

maintain the FRCs, as compared to the 

current operational environment. 

ICE is unable to estimate how long 

detention would be extended for some 

categories of minors and their 

accompanying adults in FRCs due to 

this proposed rule. The average length 

of stay in the past is not a reliable 

source for future projections. The 

average length of stay prior to the court 

decisions in 2015 and 2017 reflect other 

policy decisions that will not be directly 

affected by this proposed rule. In 

addition, the number of days some 

minors and their accompanying adults 

may be detained depends on several 

factors, including a number of factors 

that are beyond the scope of this 

proposed rule. Among other factors, 

these may include the number of minors 

and their accompanying adults who 

arrive in a facility on a given day; the 

timing and outcome of immigration 

court proceedings before an immigration 

judge; whether an individual is eligible 

for parole or bond; issuance of travel 

documents by foreign governments; 

transportation schedule and availability; 

the availability of bed space in an FRC; 

and other laws, regulations, guidance, 

and policies regarding removal not 

subject to this proposed rule. 

Although DHS cannot reliably predict 

the increased average length of stay for 

affected minors and their accompanying 

adults in FRCs, DHS recognizes that 

generally only certain groups of aliens 

are likely to have their length of stay in 

an FRC increased as a result of this 

proposed rule, among other factors. For 

instance, aliens who have received a 

positive credible fear determination, 

and who are not suitable for parole, may 

be held throughout their asylum 


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proceedings. Likewise, aliens who have 

received a negative credible fear 

determination, have requested review of 

the determination by an immigration 

judge and had the negative 

determination upheld, and are awaiting 

removal, are likely to be held until 

removal can be effectuated. In FY 2017, 

16,807 minors in FRCs went through the 

credible fear screening process and were 

released. Table 12 shows for FY 2017 

the number of minors who went through 

the credible fear screening process who 

were released from FRCs. It does not 

include those minors who were 

removed while detained at an FRC. 

Those minors who were removed from 

an FRC would not have their lengths of 

stay increased pursuant to the changes 

proposed in this rule. 

TABLE 12—FY 2017 MINORS AT

FRCS WHO WENT THROUGH CREDIBLE FEAR SCREENING PROCESS

Number of 

minors at 

FRCs 

Positive Credible Fear Determinations ................................. 14,993 

Negative Credible Fear Determinations ................................. 349 

Immigration Judge Review 

Requested ........................ 317 

Immigration Judge Review 

Not Requested ................. 32 

Administratively Closed .............. 1,465 

Of the 14,993 minors shown in Table 

12 who had positive credible fear 

determinations, about 99 percent were 

paroled or released on their own 

recognizance. The remaining one 

percent of minors are those in categories 

that might have their length of stay in 

an FRC increased due to this proposed 

rule. 

Separate from the population of 

minors referenced in Table 12, members 

of a family unit with administratively 

final orders of removal, once this rule 

has been finalized, are likely to be held 

until removed. 842 such minors who 

were detained and released at FRCs 

during FY 2017 either had final orders 

of removal at the time of their release or 

subsequently received final orders of 

removal following their release within 

the same FY. Minors like these 842 may 

be held in detention longer as a result 

of this rule. While DHS generally 

expects an increase in the average 

length of stay to affect only these 

groups, there may be others that may be 

affected. 

In FY 2017, the total number of 

minors who might have been detained 

longer at an FRC is estimated to be the 

number of minors in an FRC who were 

not paroled or released on order of their 

own recognizance (131), plus the 

number of such minors who had 

negative credible fear determinations 

(349), plus administratively closed cases 

(1,465), plus those who were released 

and either had final orders of removals 

at the time of their release or 

subsequently received final orders 

following their release (842), or 2,787. 

While the above analysis reflects the 

number of minors in these groups in the 

FY 2017, DHS is unable to forecast the 

future total number of such minors. 

The remaining factor in estimating the 

costs that are attributed to a potentially 

increased length of stay for these groups 

of minors and their accompanying 

parent or legal guardian are the variable 

contract costs paid by ICE to the private 

contractor and government entity who 

operate and maintain the FRCs. The 

fixed and variable contract costs were 

obtained from ICE Office of Acquisition 

Management. For Berks, there is a $16 

per-person, per-day fee in addition to 

the monthly fixed contract rate. 

Assuming that the contract terms are the 

same in the future, an increased number 

of days that all individuals would be at 

an FRC may also increase this total 

variable fee amount. Due to the 

uncertainty surrounding estimating an 

increased length of stay and the number 

of aliens this may affect, the total 

incremental cost of this per day per 

person fee is not estimated. 

Educational services are provided at 

the Berks and Karnes FRCs at a variable 

cost per-student, per-day. The cost at 

Karnes is $75 per-student, per-day, and 

at Berks the cost is $79 per-student, perday. There is a fixed monthly cost for 

educational services at Dilley of 

$342,083; it is not dependent on the 

number of students per day. 

Assuming again that future contract 

terms are the same, the total education 

cost may increase if certain aliens, like 

the groups described above, are 

detained longer. However, the 

incremental variable education cost is 

not estimated because of the uncertainty 

surrounding the factors that make up 

the estimate of the average length of stay 

and the number of minors that may have 

an increased length of stay. 

This rule also proposes to change 

current ICE practices for parole 

determinations to align them with 

applicable statutory and regulatory 

authority. ICE is currently complying 

with the June 27, 2017 court order while 

it is on appeal. In complying, every 

detained minor in expedited removal 

proceedings and awaiting a credible fear 

determination or determined not to have 

a credible fear receives an 

individualized parole determination 

under the considerations laid out in 8 

CFR 212.5(b), which considers only 

whether the minor is a flight risk. 

However, ICE proposes to revert to its 

practice prior to the 2017 court order for 

those minors in expedited removal 

proceedings, using its parole authorities 

under 8 CFR 235.3 sparingly for this 

category of aliens, as intended by 

Congress. See 8 U.S.C. 

1225(b)(1)(B)(iii)(IV) (‘‘Any alien subject 

to [expedited removal] shall be detained 

pending a final determination of 

credible fear of persecution and, if 

found not to have such a fear, until 

removed.’’). Under this standard, for 

aliens who are in expedited removal 

proceedings and are pending a credible 

fear determination or who have been 

found not to have such fear, release on 

parole can only satisfy this standard 

when there is a medical necessity or a 

law enforcement need. Accordingly, this 

change may result in fewer such minors 

or their accompanying parent or legal 

guardians being released on parole. 

Aliens in expedited removal 

proceedings are not generally detained 

in mandatory custody for long periods 

of time. Either a removal order is issued 

within a short amount of time or a 

Notice to Appear is issued, which may 

make the alien eligible for various forms 

of release. Consequently, DHS does not 

anticipate that these changes will result 

in extended periods of detention for 

minors who are in expedited removal 

proceedings. 

At this time, ICE is unable to 

determine how the number of FRCs may 

change due to this proposed rule. There 

are many factors that would be 

considered in opening a new FRC, some 

of which are outside the scope of this 

proposed regulation, such as whether 

such a facility would be appropriate, 

based on the population of aliens 

crossing the border, anticipated 

capacity, projected average daily 

population, and projected costs. 

With respect to CBP, the proposed 

rule is not anticipated to have an impact 

on current operations because CBP is 

currently implementing the relevant and 

substantive terms of the FSA, the HSA, 

and the TVPRA. 

HHS 

HHS has complied with the FSA for 

over 20 years. The proposed rule would 

codify current HHS compliance with the 

FSA, court orders, and statutes. 

Accordingly, HHS does not expect this 

proposed rule to impose any additional 

costs, beyond those costs incurred by 

the Federal Government to establish the 

810 Hearings process within HHS. 

This rule will shift responsibility for 

custody redetermination hearings for 


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UACs, now proposed to be referred to as 

810 hearings, from DOJ to HHS. We 

estimate that some resources will be 

required to implement this shift. We 

believe that this burden will fall on DOJ 

and HHS staff, and we estimate 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, we estimate that 

the rule will lead to no change in net 

resources required for 810 hearings, and 

therefore estimate no incremental costs 

or savings. We seek public comment on 

these estimates. 

(4) Benefits 

The primary benefit of the proposed 

rule would be to ensure that applicable 

regulations reflect the current 

conditions of DHS detention, release, 

and treatment of minors and UACs, in 

accordance with the relevant and 

substantive terms of the FSA, the HSA, 

and the TVPRA. 

Without codifying the FSA as 

proposed in this rule, family detention 

is a less effective tool to meet the 

enforcement mission of ICE. In many 

cases, families do not appear for 

immigration court hearings after being 

released from an FRC, and even when 

they do, many more fail to comply with 

the lawfully issued removal orders from 

the immigration courts and some 

families engage in dilatory legal tactics 

when ICE works to enforce those orders. 

By departing from the FSA in limited 

cases to reflect the intervening statutory 

and operational changes, ICE is 

reflecting its existing discretion to 

detain families together, as appropriate, 

given enforcement needs, which will 

ensure that family detention remains an 

effective enforcement tool. 

HHS, having not been an original 

party to the FSA but having inherited 

some of its requirements, likewise 

benefits from the current operational 

environment with proposed rules that 

clearly delineate ORR’s responsibilities 

from that of other Federal partners. 

Additionally, the proposed codification 

of the FSA terms, specifically the 

minimum standards for licensed 

facilities and the release process ensures 

a measure of consistency across the 

programs network of state licensed 

facilities. 

The regulations are also designed to 

eliminate judicial management, through 

the FSA, of functions Congress 

delegated to the executive branch. 

(5) Conclusion 

This proposed rule reflects current 

requirements to comply with the FSA, 

court orders, the HSA, and the TVPRA. 

The Departments consider current 

operations and procedures for 

implementing the terms of the FSA, the 

HSA, and the TVPRA to be the baseline 

for this analysis. Because these costs are 

already being incurred, they are not 

costs of this rule. The primary source of 

new costs for the proposed rule would 

be a result of the proposed alternative 

licensing process, changes to current 

ICE parole determination practices to 

align them with applicable statutory and 

regulatory authority, and the costs of 

shifting hearings from DOJ to HHS. ICE 

expects the proposed alternative 

licensing process and changes to current 

parole determination practices to extend 

detention of certain minors in FRCs. 

This may result in additional or longer 

detentions for certain minors, increasing 

annual variable costs paid by ICE to the 

operators of Berks and Karnes and costs 

to the individuals being detained, but 

due to the uncertainty surrounding 

estimating an increased length of stay 

and the number of aliens this may 

affect, this incremental cost is not 

quantified. 

(6) Alternatives 

No Regulatory Action 

The Departments considered not 

promulgating this rule. The 

Departments had been engaged in this 

alternative prior to proposing this rule, 

which has required the Government to 

adhere to the terms of the FSA, as 

interpreted by the courts, which also 

rejected the Government’s efforts to 

amend the FSA to help it better conform 

to existing legal and operational 

realities. Continuing with this 

alternative would likely require the 

Government to operate through nonregulatory 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. The Departments 

reject this alternative because past 

successful motions to enforce the 

Agreement have consistently expanded 

the FSA beyond what the Departments 

believe was its original and intended 

scope and imposed operationally 

impracticable or effectively impossible 

requirements not intended by the 

parties to the FSA and in tension with 

(if not incompatible with) current legal 

authorities. The Departments also reject 

this alternative because it does not 

address the current conflict between 

certain portions of the FSA and the HSA 

and TVPRA. 

Comprehensive FSA/TVPRA/Asylum 

Regulation 

The Departments considered 

proposing within this regulatory action 

additional regulations addressing 

further areas of authority under the 

TVPRA, to include those related to 

asylum proceedings for UACs. The 

Departments rejected this alternative in 

order to solely focus this regulatory 

action on implementing the terms of the 

FSA, and provisions of the HSA and 

TVPRA where they necessarily intersect 

with the FSA’s provisions. And, 

promulgating this more targeted 

regulation does not preclude the 

Departments from subsequently issuing 

regulations to address broader issues. 

Promulgate Regulations—Preferred 

Alternative 

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.’’ Under this alternative, the 

Departments are proposing to publish 

the relevant and substantive terms of the 

FSA as regulations, while maintaining 

the operational flexibility necessary to 

continue operations and ensuring that 

minors and UACs continue to be treated 

in accordance with the FSA, the HSA, 

and the TVPRA. 

B. Regulatory Flexibility Act 

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. 

An initial regulatory flexibility 

analysis follows. 

(1) A description of the reasons why 

the action by the agency is being 

considered. 

The purpose of this action is to 

promulgate regulations that implement 

the relevant and substantive terms of the 

FSA. This proposed rule would 

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. 


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26U.S. Small Business Administration, Tables of 

Small Business Size Standards Matched to NAICS 

Codes (Oct. 1, 2017), available at https://

www.sba.gov/sites/default/files/files/Size_

Standards_Table_2017.xlsx. 

27 DHS obtained NAICS codes and 2016 annual 

sales data from Hoovers.com. 

28Annual Estimates of the Resident Population: 

April 1, 2010 to July 1, 2017. Source: U.S. Census 

Bureau, Population Division. 

29 DHS obtained NAICS codes and 2016 annual 

sales data from Hoovers.com and 

ReferenceUSA.com. 

(2) A succinct statement of the 

objectives of, and legal basis for, the 

proposed rule. 

The main purpose of this action is to 

promulgate regulations that implement 

the relevant and substantive terms of the 

FSA. The FSA provides standards for 

the detention, treatment, and transfer of 

minors and UACs. The Secretary of 

Homeland Security derives her 

authority to promulgate these proposed 

regulatory amendments primarily from 

the Immigration and Nationality Act 

(INA or Act), as amended, 8 U.S.C. 1101 

et seq. The Secretary may ‘‘establish 

such regulations’’ as she deems 

necessary for carrying out her 

authorities under the INA. INA sec. 

103(a)(3), 8 U.S.C. 1103(a)(3). In 

addition, section 462 of the HSA and 

section 235 of the TVPRA prescribe 

substantive requirements and 

procedural safeguards to be 

implemented by DHS and HHS with 

respect to UACs. And court decisions 

have dictated how the FSA is to be 

implemented. See, e.g., Flores v. 

Sessions, 862 F.3d 863 (9th Cir. 2017); 

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

2016); Flores v. Sessions, No. 2:85–cv– 

04544 (C.D. Cal. June 27, 2017). 

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 alien children 

that were vested by statute in, or 

performed by, the Commissioner of 

Immigration and Naturalization.’’ 6 

U.S.C. 279(a). The ORR Director may, 

for purposes of performing a function 

transferred by this section, ‘‘exercise all 

authorities under any other provision of 

law that were available with respect to 

the performance of that function to the 

official responsible for the performance 

of the function’’ immediately before the 

transfer of the program. 6 U.S.C. 

279(f)(1). 

Consistent with provisions in the 

HSA, and 8 U.S.C. 1232(a), the TVPRA 

places the responsibility for the care and 

custody of UACs with the Secretary of 

Health and Human Services. Prior to the 

transfer of the program, the 

Commissioner of Immigration and 

Naturalization, through a delegation 

from the Attorney General, had 

authority ‘‘to establish such regulations 

. . . as he deems necessary for carrying 

out his authority under the provisions of 

this Act.’’ INA sec. 103(a)(3), 8 U.S.C. 

1103(a)(3) (2002); 8 CFR 2.1 (2002). In 

accordance with the relevant savings 

and transfer provisions of the HSA, see 

6 U.S.C. 279, 552, 557; see also 8 U.S.C. 

1232(b)(1); the ORR Director now 

possesses the authority to promulgate 

regulations concerning ORR’s 

administration of its responsibilities 

under the HSA and TVPRA. 

(3) A description of and, where 

feasible, an estimate of the number of 

small entities to which the proposed 

rule will apply. 

This proposed rule would directly 

regulate DHS and HHS. DHS contracts 

with private contractors and a local 

government to operate and maintain 

FRCs, and with private contractors to 

provide transportation of minors and 

UACs. This rule would indirectly affect 

these entities to the extent that DHS 

contracts with them under the terms 

necessary to fulfill the FSA. To the 

degree this rule increases contract costs 

to DHS private contractors, it would be 

incurred by the Federal Government in 

the cost paid by the contract. Similarly, 

as of June 2018, HHS is funding nonprofit organizations to provide shelter, 

counseling, medical care, legal services, 

and other support services to UACs in 

custody. HHS does not believe this rule 

would increase costs to any of their 

grantees. 

ICE currently contracts with three 

operators of FRCs, two of which are 

businesses and the other a local 

governmental jurisdiction. ICE and CBP 

also each have one contractor that 

provides transportation. To determine if 

the private contractors that operate and 

maintain FRCs and the private 

contractors that provide transportation 

are small entities, DHS references the 

Small Business Administration (SBA) 

size standards represented by business 

average annual receipts. SBA’s Table of 

Small Business Size Standards is 

matched to the North American 

Industry Classification System (NAICS) 

for these industries.26 To determine if 

the local government that operates and 

maintains an FRC is a small entity, DHS 

applies the 50,000 size standard for 

governmental jurisdictions. 

DHS finds that the revenue of the 

private contractors that operate and 

maintain two of the three FRCs to be 

greater than the SBA size standard of 

the industry represented by NAICS 

531110: Lessors of Residential Buildings 

and Dwellings. The size standard 

classified by the SBA is $38.5 million 

for lessors of buildings space to the 

Federal Government by Owners.27 The 

county population of the local 

government that operates and maintains 

the other FRC is over 50,000, based on 

2017 U.S. Census Bureau annual 

resident population estimates.28

DHS finds that the revenue of the two 

private contractors that provide 

transportation to minors, in some cases 

their family members, and to UACs for 

DHS to be greater than the SBA size 

standard of these industries.29 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, HHS funds 37 grantees to 

provide services to UACs. HHS finds 

that all 37 current grantees are nonprofits that do not appear to be 

dominant in their field. Consequently, 

HHS believes all 37 grantees are likely 

to be small entities for the purposes of 

the RFA. 

The proposed changes to DHS and 

HHS regulations would not directly 

impact any small entities. 

(4) A description of the projected 

reporting, recordkeeping, and other 

compliance requirements of the 

proposed rule, including an estimate of 

the classes of small entities which will 

be subject to the requirement and the 

type of professional skills necessary for 

preparation of the report or record. 

The proposed rule would codify the 

relevant and substantive terms of the 

FSA. ICE believes the FRCs, which are 

operated and maintained by private 

contractors or a local government, 

comply with these provisions, and will 

continue to comply through future 

contract renewals. To the extent this 

rule increases variable contract costs, 

such as a per student per day education 

cost, to any detention facilities, the cost 

increases would be passed along to the 

Federal Government in the cost paid for 

the contract. However, DHS cannot say 

with certainty how much, if any, 

increase in variable education costs 

would result from this rule. 

A primary source of new costs for the 

proposed rule would be as a result of 

the proposed alternative licensing 

process. ICE currently fulfills the 

requirements being proposed as an 

alternative to licensing through its 

existing FRC contracts. To codify the 

requirements of the FSA, DHS is 

proposing in this rule that facilities that 

hold minors obtain state, county, or 

municipal licensing where appropriate 

licenses are available. If no such 

licensing regime is available, however, 

DHS proposes that it will employ an 


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30See the discussion of the definition of 

‘‘licensed facility’’ supra. 

outside entity to ensure that the facility 

complies with family residential 

standards established by ICE and that 

meet the requirements for licensing 

under the FSA. That would fulfill the 

goals of obtaining a license from a state 

or local agency. Most states do not offer 

licensing for facilities like the FRCs.30

Therefore, to meet the terms of the FSA, 

minors are generally held in FRCs for 

less than 20 days (see Table 5). As all 

FRCs would be licensed under this 

proposed rule, the proposed rule may 

result in extending detention of some 

minors and their accompanying parent 

or legal guardian in FRCs beyond 20 

days. Additionally, this rule would 

change ICE parole determination 

practices, which may result in fewer 

aliens being paroled. 

An increase in the average length of 

detention may increase the variable 

costs paid by ICE to the private 

contractors who operate and maintain 

Berks and Karnes, as compared to the 

current operational environment. Due to 

many uncertainties surrounding the 

forecast, DHS is unable to estimate the 

incremental variable costs due to this 

proposed rule. Refer to Section VI.A. 

Executive Orders 12866 and 13563: 

Regulatory Review for the description of 

the uncertainties. 

As discussed above, DHS would incur 

these potential costs through the cost 

paid for the contract with these 

facilities. 

There are no cost impacts on the 

contracts for providing transportation 

because this rule codifies current 

operations. 

The Departments request 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. 

(5) Identification, to the extent 

practicable, of all relevant federal rules 

that may duplicate, overlap or conflict 

with the proposed rule. 

The Departments are unaware of any 

relevant Federal rule that may 

duplicate, overlap, or conflict with the 

proposed rule. 

(6) Description of any significant 

alternatives to the proposed rule which 

accomplish the stated objectives of 

applicable statutes and which minimize 

any significant economic impact of the 

proposed rule on small entities. 

The Departments are not aware any 

alternatives to the proposed rule which 

accomplish the stated objectives that 

would minimize economic impact of the 

proposed rule on small entities. DHS 

requests comments and also seeks 

alternatives from the public that will 

accomplish the same objectives and 

minimize the proposed rule’s economic 

impact on small entities. 

C. Small Business Regulatory 

Enforcement Fairness Act of 1996 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, Public Law 104– 

121, 110 Stat. 847, 858–59, we want to 

assist small entities in understanding 

this proposed rule so that they can 

better evaluate its effects on them and 

participate in the rulemaking. If the 

proposed rule would affect your small 

business, organization, or governmental 

jurisdiction and you have questions 

concerning its provisions or options for 

compliance, please consult ICE or ORR, 

as appropriate, using the contact 

information provided in the FOR

FURTHER INFORMATION section above. 

D. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (UMRA), Public Law 104–4, 109 

Stat. 48 (codified at 2 U.S.C. 1501 et 

seq.), is intended, among other things, to 

curb the practice of imposing unfunded 

Federal mandates on State, local, and 

tribal governments. Title II of the Act 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in the 

expenditure of $100 million or more 

(adjusted annually for inflation) in any 

1 year by State, local, and tribal 

governments, in the aggregate, or by the 

private sector. 2 U.S.C. 1532(a). The 

value equivalent of $100 million in 1995 

adjusted for inflation to 2017 levels by 

the Consumer Price Index for All Urban 

Consumer (CPI–U) is $161 million. 

This rule does not exceed the $100 

million expenditure threshold in any 1 

year when adjusted for inflation. 

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 the Departments 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 the 

Departments. 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. 

E. Congressional Review Act 

The Office of Information and 

Regulatory Affairs has determined that 

this rulemaking is not a major rule, as 

defined by 5 U.S.C. 804, for purposes of 

congressional review of agency 

rulemaking pursuant to the 

Congressional Review Act, Public Law 

104–121, sec. 251, 110 Stat. 868, 873 

(codified at 5 U.S.C. 804). This 

rulemaking would not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based companies to 

compete with foreign-based companies 

in domestic and export markets. If this 

rule is implemented as proposed, a 

report about the issuance of the final 

rule will be submitted to Congress and 

the Comptroller General of the United 

States prior to its effective date. 

F. 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)), ACF 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 


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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. ACF received 

conditional approval from OMB for use 

of its forms on October 19, 2015, with 

an expiration date of October 31, 2018 

(OMB Control Number 0970–0278). 

Separately, ACF received approval from 

OMB for its placement and service 

forms on July 6, 2017, with an 

expiration date of July 31, 2020 (OMB 

Control Number 0970–0498); a form 

associated with the specific consent 

process is currently pending approval 

with OMB (OMB Control Number 0970– 

0385). 

G. 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 implements the FSA by codifying 

the Departments’ practices that comply 

with the terms of the FSA and relevant 

law for the processing, transfer, and care 

and custody of alien juveniles. In 

codifying these practices, the 

Departments were mindful of their 

obligations to meet the requirements of 

the FSA while also minimizing conflicts 

between State law and Federal interests. 

Insofar, however, as the proposed rule 

sets forth standards that might apply to 

immigration detention facilities and 

holding facilities operated by contract 

with State and local governments and 

private entities, this proposed rule has 

the potential to affect the States, 

although it would not affect the 

relationship between the National 

Government and the States or the 

distribution of power and 

responsibilities among the various 

levels of government and private 

entities. With respect to the State and 

local agencies, as well as the private 

entities, that contract with DHS and 

operate these facilities across the 

country, the FSA provides DHS with no 

direct authority to mandate binding 

standards on their facilities. Instead, 

these requirements will impact the 

State, local, and private entities only to 

the extent that they make voluntary 

decisions to contract with DHS for the 

processing, transportation, care, or 

custody of alien juveniles. This 

approach is fully consistent with DHS’s 

historical relationship to State and local 

agencies in this context. 

Typically HHS enters into cooperative 

agreements or contracts with non-profit 

organizations to provide shelter, care, 

and physical custody for UACs in a 

facility licensed by the appropriate State 

or local licensing authority. Where HHS 

enters into cooperative agreements or 

contacts with a state licensed facility, 

ORR requires that the non-profit 

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 HHS 

cooperative agreements and contracts 

with the agency’s grantees/contractors 

to complement appropriate State and 

licensing rules, not 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, the 

Departments welcome any comments 

from representatives of State and local 

juvenile or family residential facilities— 

among other individuals and groups— 

during the course of this rulemaking. 

H. Executive Order 12988: Civil Justice 

Reform 

This proposed rule meets the 

applicable standards set forth in 

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

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 requires 

agencies to consider the impact of rules 

that significantly impact the supply, 

distribution, and use of energy. DHS has 

reviewed this proposed rule and 

determined that it is not a ‘‘significant 

energy action’’ under the order because, 

while it is a ‘‘significant regulatory 

action’’ under Executive Order 12866, it 

does not have a significant adverse 

effect on the supply, distribution, or use 

of energy. The Administrator of the 

Office of Information and Regulatory 

Affairs has not designated it as a 

significant energy action. Therefore, this 

proposed rule does not require a 

Statement of Energy Effects under 

Executive Order 13211. 

J. National Environmental Policy Act 

(NEPA) 

The U.S. Department of Homeland 

Security Management Directive (MD) 

023–01 Revision Number 01 and 

Instruction Manual (IM) 023–01–001–01 

Revision Number 01 establish 

procedures that DHS and its 

Components use to implement the 

requirements of the National 

Environmental Policy Act of 1969 

(NEPA), 42 U.S.C. 4321–4375, and the 

Council on Environmental Quality 

(CEQ) regulations for implementing 

NEPA, 40 CFR parts 1500–1508. 

The CEQ regulations allow federal 

agencies to establish categories of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment and, therefore, 

do not require an Environmental 

Assessment or Environmental Impact 

Statement. 40 CFR 1508.4. The IM 023– 

01–001–01, Rev. 01 lists the Categorical 

Exclusions that DHS has found to have 

no such effect. IM 023–01–001–01 Rev. 

01, Appendix A, Table 1. 

For an action to be categorically 

excluded, IM 023–01–001–01 Rev. 01 

requires the action to satisfy each of the 

following three conditions: 

(1) The entire action clearly fits 

within one or more of the Categorical 

Exclusions; 

(2) The action is not a piece of a larger 

action; and 

(3) No extraordinary circumstances 

exist that create the potential for a 

significant environmental effect. IM 

023–01–001–01 Rev. 01 § V(B)(2)(a)–(c). 

Certain categories of proposed actions 

included in the Categorically Excluded 

actions list have a greater potential to 

involve extraordinary circumstances 

and require the preparation of a Record 

of Environmental Consideration to 

document the NEPA analysis. IM 023– 

01–001–01 Rev. 01 § V(B)(2). 

This proposed rule would implement 

the relevant and substantive terms of the 

FSA, with such limited changes as are 

necessary to implement closely related 

provisions of the HSA and the TVPRA, 

and to ensure that the regulations set 

forth a sustainable operational model. 

The proposed rule would implement 

regulations to ensure the humane 

detention of alien juveniles, and satisfy 

the goals of the FSA, in a manner that 

is workable and enforceable. 

DHS analyzed this proposed rule 

under MD 023–01 Rev. 01 and IM 023– 

01–001–01 Rev. 01. DHS has made a 

preliminary determination that this 

action is one of a category of actions that 

do not individually or cumulatively 

have a significant effect on the human 

environment. This proposed rule clearly 


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fits within the Categorical Exclusions 

found in IM 023–01–001–01 Rev. 01, 

Appendix A, Table 1, number A3(b) and 

A3(d). A3(b) reads as: The 

‘‘Promulgation of rules . . . that 

implement, without substantive change, 

statutory or regulatory requirements.’’ 

A3(d) reads as: The ‘‘Promulgation of 

rules . . . that interpret or amend an 

existing regulation without changing its 

environmental effect.’’ This proposed 

rule is not part of a larger action. This 

proposed rule presents no extraordinary 

circumstances creating the potential for 

significant environmental effects. 

Therefore, this proposed rule is 

categorically excluded from further 

NEPA review. 

For purposes of the joint NPRM, 

ORR’s functions are categorically 

exempted from NEPA requirements as 

ORR’s state licensed facilities are 

operated under social service grants. 

While the exception specifically 

excludes ‘‘projects involving 

construction, renovation, or changes in 

land use,’’ ORR is generally precluded 

from initiating these types of projects 

directly for traditional shelter care in 

state licensed facilities, as the agency 

lacks construction authority. 

The Departments seek any comments 

or information that may lead to the 

discovery of any significant 

environmental effects from this 

proposed rule. 

K. Executive Order 12630: 

Governmental Actions and Interference 

With Constitutionally Protected Property 

Rights 

This proposed rule would not cause a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630, Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights. 

L. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045 requires 

agencies to consider the impacts of 

environmental health risk or safety risk 

that may disproportionately affect 

children. The Departments have 

reviewed this proposed rule and 

determined that this rule is not an 

economically significant rule and would 

not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Therefore, the Departments have not 

prepared a statement under this 

executive order. 

M. National Technology Transfer and 

Advancement Act 

The National Technology Transfer 

and Advancement Act of 1995 (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through OMB, with 

an explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise 

impracticable. Voluntary consensus 

standards are technical standards (e.g., 

specifications of materials, performance, 

design, or operation; test methods; 

sampling procedures; and related 

management systems practices) that are 

developed or adopted by voluntary 

consensus standards bodies. This 

proposed rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

N. Family Assessment 

The Departments have reviewed this 

proposed rule in accordance with the 

requirements of section 654 of the 

Treasury General Appropriations Act, 

1999, Public Law 105–277. With respect 

to the criteria specified in section 

654(c)(1), insofar as the proposed rule 

may ensure the continued availability of 

FRCs notwithstanding the lack of state 

licensure, the proposed rule may in 

some respects strengthen the stability of 

the family and the authority and rights 

of parents in the education, nurture, and 

supervision of their children, within the 

immigration detention context. The rule 

would also codify in regulation certain 

statutory policies with respect to the 

treatment of UACs. In general, however, 

as proposed, these regulations would 

not have an impact on family well-being 

as defined in this legislation. With 

respect to family well-being, this 

proposed rule codifies current 

requirements of settlement agreements, 

court orders, and statutes, most of 

whose terms have been in place for over 

20 years, as well as HHS’s related 

authorities. 

VII. List of Subjects and Regulatory 

Amendments 

List of Subjects 

8 CFR Part 212 

Administrative practice and 

procedure, Aliens, Immigration, 

Passports and visas, Reporting and 

recordkeeping requirements. 

8 CFR Part 236 

Apprehension and detention of 

inadmissible and deportable aliens, 

Removal of aliens ordered removed, 

Administrative practice and procedure, 

Aliens, Immigration. 

45 CFR Part 410 

Administrative practice and 

procedure, Child welfare, Immigration, 

Unaccompanied alien children, 

Reporting and recordkeeping 

requirements. 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Chapter I 

For the reasons set forth in the 

preamble, parts 212 and 236 of chapter 

I are proposed to be amended as 

follows: 

PART 212—DOCUMENTARY 

REQUIREMENTS; NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE 

■ 1. The authority citation for part 212 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1181, 

1182, 1203, 1225, 1257; 8 CFR part 2. 

■ 2. In § 212.5, revise paragraphs (b) 

introductory text and (b)(3) to read as 

follows: 

§ 212.5 Parole of aliens into the United 

States. 

* * * * * 

(b) The parole of aliens within the 

following groups who have been or are 

detained in accordance with § 235.3(c) 

of this chapter would generally be 

justified only on a case-by-case basis for 

‘‘urgent humanitarian reasons or 

‘‘significant public benefit,’’ provided 

the aliens present neither a security risk 

nor a risk of absconding: 

* * * * * 

(3) Aliens who are defined as minors 

in § 236.3(b) of this chapter and are in 

DHS custody. The Executive Assistant 

Director, Enforcement and Removal 

Operations; directors of field operations; 

field office directors, deputy field office 

directors; or chief patrol agents shall 

follow the guidelines set forth in 

§ 236.3(j) of this chapter and paragraphs 

(b)(3)(i) through (ii) of this section in 

determining under what conditions a 

minor should be paroled from 

detention: 

(i) Minors may be released to a parent 

or legal guardian not in detention. 

(ii) Minors may be released with an 

accompanying parent or legal guardian 

who is in detention. 

* * * * * 


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PART 236—APPREHENSION AND 

DETENTION OF INADMISSIBLE AND 

DEPORTABLE ALIENS; REMOVAL OF 

ALIENS ORDERED REMOVED 

■ 3. The authority citation for part 236 

is revised to read as follows: 

Authority: 5 U.S.C. 301, 552, 552a; 6 U.S.C. 

112(a)(2), 112(a)(3), 112(b)(1), 112(e), 202, 

251, 279, 291; 8 U.S.C. 1103, 1182, 1224, 

1225, 1226, 1227, 1231, 1232, 1357, 1362; 18 

U.S.C. 4002, 4013(c)(4); 8 CFR part 2. 

■ 4. Section 236.3 is revised to read as 

follows: 

§ 236.3 Processing, detention, and release 

of alien minors. 

(a) Generally. (1) DHS treats all 

minors and UACs in its custody with 

dignity, respect and special concern for 

their particular vulnerability. 

(2) The provisions of this section 

apply to all minors in the legal custody 

of DHS, including minors who are 

subject to the mandatory detention 

provisions of the INA and applicable 

regulations, to the extent authorized by 

law. 

(b) Definitions. For the purposes of 

this section: 

(1) Minor means any alien who has 

not attained eighteen (18) years of age 

and has not been: 

(i) Emancipated in an appropriate 

state judicial proceeding; or 

(ii) Incarcerated due to a conviction 

for a criminal offense in which he or she 

was tried as an adult. 

(2) Special Needs Minor means a 

minor whose mental and/or physical 

condition requires special services and 

treatment as identified during an 

individualized needs assessment as 

referenced in paragraph (i)(4)(iii) of this 

section. A minor may have special 

needs due to drug or alcohol abuse, 

serious emotional disturbance, mental 

illness or retardation, or a physical 

condition or chronic illness that 

requires special services or treatment. A 

minor who has suffered serious neglect 

or abuse may be considered a minor 

with special needs if the minor requires 

special services or treatment as a result 

of the neglect or abuse. 

(3) Unaccompanied Alien Child 

(UAC) has the meaning provided in 6 

U.S.C. 279(g)(2), that is, a child who has 

no lawful immigration status in the 

United States and who has not attained 

18 years of age; and with respect to 

whom: There is no parent or legal 

guardian present in the United States; or 

no parent or legal guardian in the 

United States is available to provide 

care and physical custody. An 

individual may meet the definition of 

UAC without meeting the definition of 

minor. 

(4) Custody means within the physical 

and legal control of an institution or 

person. 

(5) 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 minors, 

or impacts other conditions provided by 

this section. 

(6) Escape-risk means that there is a 

serious risk that the minor will attempt 

to escape from custody. Factors to 

consider when determining whether a 

minor is an escape-risk include, but are 

not limited to, whether: 

(i) The minor is currently subject to a 

final order of removal; 

(ii) The minor’s immigration history 

includes: A prior breach of bond, a 

failure to appear before DHS or the 

immigration courts, evidence that the 

minor is indebted to organized 

smugglers for his transport, or a 

voluntary departure or previous removal 

from the United States pursuant to a 

final order of removal; or 

(iii) The minor has previously 

absconded or attempted to abscond from 

state or federal custody. 

(7) Family unit means a group of two 

or more aliens consisting of a minor or 

minors accompanied by his/her/their 

adult parent(s) or legal guardian(s). In 

determining the existence of a parental 

relationship or a legal guardianship for 

purposes of this definition, DHS will 

consider all available reliable evidence. 

If DHS determines that there is 

insufficient reliable evidence available 

that confirms the relationship, the 

minor will be treated as a UAC. 

(8) Family Residential Center means a 

facility used by ICE for the detention of 

Family Units. 

(9) Licensed Facility means an ICE 

detention facility that is licensed by the 

state, county, or municipality in which 

it is located, if such a licensing scheme 

exists. Licensed facilities shall comply 

with all applicable state child welfare 

laws and regulations and all state and 

local building, fire, health, and safety 

codes. If a licensing scheme for the 

detention of minors accompanied by a 

parent or legal guardian is not available 

in the state, county, or municipality in 

which an ICE detention facility is 

located, DHS shall employ an entity 

outside of DHS that has relevant audit 

experience to ensure compliance with 

the family residential standards 

established by ICE. 

(10) Influx means a situation in which 

there are, at any given time, more than 

130 minors or UACs eligible for 

placement in a licensed facility under 

this section or corresponding provisions 

of ORR regulations, including those who 

have been so placed or are awaiting 

such placement. 

(11) Non-Secure Facility means a 

facility that meets the definition of nonsecure in the state in which the facility 

is located. If no such definition of nonsecure exists under state law, a DHS 

facility shall be deemed non-secure if 

egress from a portion of the facility’s 

building is not prohibited through 

internal locks within the building or 

exterior locks and egress from the 

facility’s premises is not prohibited 

through secure fencing around the 

perimeter of the building. 

(12) Office of Refugee Resettlement 

(ORR) means the U.S. Department of 

Health and Human Services, 

Administration for Children and 

Families, Office of Refugee 

Resettlement. 

(c) Age Determination. (1) For 

purposes of exercising the authorities 

described in this part, DHS shall 

determine the age of an alien in 

accordance with 8 U.S.C. 1232(b)(4). 

Age determination decisions shall be 

based upon the totality of the evidence 

and circumstances. 

(2) If a reasonable person would 

conclude that an individual is an adult, 

despite his or her claim to be under the 

age of 18, DHS may treat such person as 

an adult for all purposes, including 

confinement and release on bond, 

recognizance, or other conditions of 

release. In making this determination, 

an immigration officer may require such 

an individual to submit to a medical or 

dental examination conducted by a 

medical professional or other 

appropriate procedures to verify his or 

her age. 

(3) If an individual previously 

considered to have been an adult is 

subsequently determined to be a under 

the age of 18, DHS will then treat such 

individual as a minor or UAC as 

prescribed by this section. 

(d) Determining whether an alien is a 

UAC. (1) Immigration officers will make 

a determination as to whether an alien 

under the age of 18 is a UAC at the time 

of encounter or apprehension and prior 

to the detention or release of such alien. 

(2) When an alien previously 

determined to have been a UAC has 

reached the age of 18, when a parent or 

legal guardian in the United States is 

available to provide care and physical 

custody for such an alien, or when such 

alien has obtained lawful immigration 

status, the alien is no longer a UAC. An 

alien who is no longer a UAC is not 

eligible to receive legal protections 

limited to UACs under the relevant 

sections of the Act. Nothing in this 

paragraph affects USCIS’ independent 


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determination of its initial jurisdiction 

over asylum applications filed by UACs 

pursuant to section 208(b)(3)(C) of the 

Act. 

(3) Age-out procedures. When an 

alien previously determined to have 

been a UAC is no longer a UAC because 

he or she turns eighteen years old, 

relevant ORR and ICE procedures shall 

apply. 

(e) Transfer of minors who are not 

UACs from one facility to another. (1) In 

the case of an influx or emergency, as 

defined in paragraph (b) of this section, 

DHS will transfer a minor who is not a 

UAC, and who does not meet the 

criteria for secure detention pursuant to 

paragraph (i)(1)of this section, to a 

licensed facility as defined in paragraph 

(b)(9) of this section, which is nonsecure, as expeditiously as possible. 

Otherwise, to the extent consistent with 

law or court order, DHS will transfer 

such minor within three (3) days, if the 

minor was apprehended in a district in 

which a licensed program is located, or 

within five (5) days in all other cases. 

(2) In the case of an emergency or 

influx, DHS will abide by written 

guidance detailing all reasonable efforts 

that it will take to transfer all minors 

who are not UACs as expeditiously as 

possible. 

(f) Transfer of UACs from DHS to 

HHS. (1) All UACs apprehended by 

DHS, except those who are subject to 

the terms of 8 U.S.C. 1232(a)(2), will be 

transferred to ORR for care, custody, 

and placement in accordance with 6 

U.S.C. 279 and 8 U.S.C. 1232. 

(2) DHS will notify ORR within 48 

hours upon the apprehension or 

discovery of a UAC or any claim or 

suspicion that an unaccompanied alien 

detained in DHS custody is under 18 

years of age. 

(3) Unless exceptional circumstances 

are present, DHS will transfer custody of 

a UAC as soon as practicable after 

receiving notification of an ORR 

placement, but no later than 72 hours 

after determining that the minor is a 

UAC per paragraph (d) of this section. 

In the case of exceptional 

circumstances, DHS will abide by 

written guidance detailing the efforts 

that it will take to transfer all UACs as 

required by law. 

(4) Conditions of transfer. (i) A UAC 

will not be transported with an 

unrelated detained adult(s) unless the 

UAC is being transported from the place 

of apprehension to a DHS facility or if 

separate transportation is otherwise 

impractical or unavailable. 

(ii) When separate transportation is 

impractical or unavailable, necessary 

precautions will be taken to ensure the 

UAC’s safety, security, and well-being. 

If a UAC is transported with any 

unrelated detained adult(s), DHS will 

separate the UAC from the unrelated 

adult(s) to the extent operationally 

feasible and take necessary precautions 

for protection of the UAC’s safety, 

security, and well-being. 

(g) DHS procedures in the 

apprehension and processing of minors 

or UACs. 

(1) Processing. (i) Notice of rights and 

request for disposition. Every minor or 

UAC who enters DHS custody, 

including minors and UACs who 

request voluntary departure or request 

to withdraw their application for 

admission, will be issued a Form I–770, 

Notice of Rights and Request for 

Disposition, which will include a 

statement that the minor or UAC may 

make a telephone call to a parent, close 

relative, or friend. If the minor or UAC 

is believed to be less than 14 years of 

age, or is unable to comprehend the 

information contained in the Form I– 

770, the notice shall be read and 

explained to the minor or UAC in a 

language and manner that he or she 

understands. In the event that a minor 

or UAC is no longer amenable to 

voluntary departure or to a withdrawal 

of an application for admission, the 

minor or UAC will be issued a new 

Form I–770 or the Form I–770 will be 

updated, as needed. 

(ii) Notice of Right to Judicial Review. 

Every minor who is not a UAC who is 

transferred to or remains in a DHS 

detention facility will be provided with 

a Notice of Right to Judicial Review, 

which informs the minor of his or her 

right to seek judicial review in United 

States District Court with jurisdiction 

and venue over the matter if the minor 

believes that his or her detention does 

not comply with the terms of paragraph 

(i) of this section. 

(iii) Current List of Counsel. Every 

minor who is not a UAC who is 

transferred to or remains in a DHS 

detention facility will be provided the 

free legal service provider list, prepared 

pursuant to section 239(b)(2) of the Act. 

(2) DHS custodial care immediately 

following apprehension. (i) Following 

the apprehension of a minor or UAC, 

DHS will process the minor or UAC as 

expeditiously as possible. Consistent 

with 6 CFR 115.114, minors and UACs 

shall be held in the least restrictive 

setting appropriate to the minor or 

UAC’s age and special needs, provided 

that such setting is consistent with the 

need to protect the minor or UAC’s 

well-being and that of others, as well as 

with any other laws, regulations, or 

legal requirements. DHS will hold 

minors and UACs in facilities that are 

safe and sanitary and that are consistent 

with DHS’s concern for their particular 

vulnerability. Facilities will provide 

access to toilets and sinks, drinking 

water and food as appropriate, access to 

emergency medical assistance as 

needed, and adequate temperature and 

ventilation. DHS will provide adequate 

supervision and will provide contact 

with family members arrested with the 

minor or UAC in consideration of the 

safety and well-being of the minor or 

UAC, and operational feasibility. UACs 

generally will be held separately from 

unrelated adult detainees in accordance 

with 6 CFR 115.14(b) and 6 CFR 

115.114(b). In the event that such 

separation is not immediately possible, 

UACs in facilities covered by 6 CFR 

115.114 may be housed with an 

unrelated adult for no more than 24 

hours except in the case of an 

emergency or other exigent 

circumstances. 

(ii) Consistent with the statutory 

requirements, DHS will transfer UACs 

to HHS in accordance with the 

procedures described in paragraph (f) of 

this section. 

(h) Detention of family units. DHS’s 

policy is to maintain family unity, 

including by detaining families together 

where appropriate and consistent with 

law and available resources. If DHS 

determines that detention of a family 

unit is required by law, or is otherwise 

appropriate, the family unit may be 

transferred to a Family Residential 

Center which is a licensed facility and 

non-secure. 

(i) Detention of minors who are not 

UACs in DHS custody. In any case in 

which DHS does not release a minor 

who is not a UAC, said minor shall 

remain in DHS detention. Consistent 

with 6 CFR 115.14, minors shall be 

detained in the least restrictive setting 

appropriate to the minor’s age and 

special needs, provided that such 

setting is consistent with the need to 

ensure the minor’s timely appearance 

before DHS and the immigration courts 

and to protect the minor’s well-being 

and that of others, as well as with any 

other laws, regulations, or legal 

requirements. The minor shall be placed 

temporarily in a licensed facility, which 

will be non-secure, until such time as 

release can be effected or until the 

minor’s immigration proceedings are 

concluded, whichever occurs earlier. If 

immigration proceedings are concluded 

and result in a final order of removal, 

DHS will detain the minor for the 

purpose of removal. If immigration 

proceedings result in a grant of relief or 

protection from removal where both 

parties have waived appeal or the 

appeal period defined in 8 CFR 


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1003.38(b) has expired, DHS will release 

the minor. 

(1) A minor who is not a UAC 

referenced under this paragraph may be 

held in or transferred to a suitable state 

or county juvenile detention facility, or 

a secure DHS detention facility, or DHS 

contracted facility having separate 

accommodations for minors, whenever 

the Field Office Director and the ICE 

supervisory or management personnel 

have probable cause to believe that the 

minor: 

(i) Has been charged with, is 

chargeable with, or has been convicted 

of a crime or crimes, or is the subject of 

delinquency proceedings, has been 

adjudicated delinquent, or is chargeable 

with a delinquent act or acts, that fit 

within a pattern or practice of criminal 

activity; 

(ii) Has been charged with, is 

chargeable with, or has been convicted 

of a crime or crimes, or is the subject of 

delinquency proceedings, has been 

adjudicated delinquent, or is chargeable 

with a delinquent act or acts, that 

involve violence against a person or the 

use or carrying of a weapon; 

(iii) Has committed, or has made 

credible threats to commit, a violent or 

malicious act (whether directed at 

himself or others) while in federal or 

state government custody or while in 

the presence of an immigration officer; 

(iv) Has engaged, while in the 

licensed facility, in conduct that has 

proven to be unacceptably disruptive of 

the normal functioning of the licensed 

facility in which the minor has been 

placed and transfer to another facility is 

necessary to ensure the welfare of the 

minor or others, as determined by the 

staff of the licensed facility; 

(v) Is determined to be an escape-risk 

pursuant to paragraph (b)(6) of this 

section; or 

(vi) Must be held in a secure facility 

for his or her own safety. 

(2) DHS will not place a minor who 

is not a UAC in a secure facility 

pursuant to paragraph (i)(1) if there are 

less restrictive alternatives that are 

available and appropriate in the 

circumstances, such as transfer to a 

facility which would provide intensive 

staff supervision and counseling 

services or another licensed facility. All 

determinations to place a minor in a 

secure facility will be reviewed and 

approved by the Juvenile Coordinator 

referenced in paragraph (o) of this 

section. Secure facilities shall permit 

attorney-client visits in accordance with 

applicable facility rules and regulations. 

(3) Non-secure facility. Unless a 

secure facility is otherwise authorized 

pursuant to this section, ICE facilities 

used for the detention of minors who 

are not UACs shall be non-secure 

facilities. 

(4) Standards. Non-secure, licensed 

ICE facilities to which minors who are 

not UACs are transferred pursuant to the 

procedures in paragraph (e) of this 

section shall abide by applicable 

standards established by ICE. At a 

minimum, such standards shall include 

provisions or arrangements for the 

following services for each minor who 

is not a UAC in its care: 

(i) Proper physical care and 

maintenance, including suitable living, 

accommodations, food, appropriate 

clothing, and personal grooming items; 

(ii) Appropriate routine medical and 

dental care, family planning services, 

and emergency health care services, 

including a complete medical 

examination (including screening for 

infectious disease) within 48 hours of 

admission, excluding weekends and 

holidays, unless the minor was recently 

examined at another facility; 

appropriate immunizations in 

accordance with the U.S. Public Health 

Service (PHS), Centers for Disease 

Control and Prevention; administration 

of prescribed medication and special 

diets; appropriate mental health 

interventions when necessary; 

(iii) An individualized needs 

assessment which includes: 

(A) Various initial intake forms; 

(B) Essential data relating to the 

identification and history of the minor 

and family; 

(C) Identification of the minor’s 

special needs including any specific 

problem(s) which appear to require 

immediate intervention; 

(D) An educational assessment and 

plan; 

(E) An assessment of family 

relationships and interaction with 

adults, peers and authority figures; 

(F) A statement of religious preference 

and practice; 

(G) An assessment of the minor’s 

personal goals, strengths and 

weaknesses; and 

(H) 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; 

(iv) Educational services appropriate 

to the minor’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 (ELT). The 

educational program should include 

subjects similar to those found in U.S. 

programs and include science, social 

studies, math, reading, writing, and 

physical education. The program design 

should be appropriate for the minor’s 

estimated length of stay and can include 

the necessary skills appropriate for 

transition into a U.S. school district. 

The program should also include 

acculturation and adaptation services 

which include information regarding 

the development of social and interpersonal skills that contribute to those 

abilities as age appropriate; 

(v) Appropriate reading materials in 

languages other than English for use 

during the minor’s leisure time; 

(vi) Activities according to a 

recreation and leisure time plan which 

shall 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 (this 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; 

(vii) At least one individual 

counseling session or mental health 

wellness interaction (if the minor does 

not want to participate in a counseling 

session) per week conducted by trained 

social work staff with the specific 

objectives of reviewing the minor’s 

progress, establishing new short-term 

objectives, and addressing both the 

developmental and crisis-related needs 

of each minor; 

(viii) Group counseling sessions at 

least twice a week. This is usually an 

informal process and takes place with 

all the minors present and can be held 

in conjunction with other structured 

activities. It is a time when new minors 

present in the facility are given the 

opportunity to get acquainted with the 

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 

activities, etc. It is a time for staff and 

minors to discuss whatever is on their 

minds and to resolve problems; 

(ix) Upon admission, a 

comprehensive orientation regarding 

program intent, services, rules (written 

and verbal), expectations and the 

availability of legal assistance; 

(x) Whenever possible, access to 

religious services of the minor’s choice; 

(xi) Visitation and contact with family 

members (regardless of their 

immigration status) which is structured 

to encourage such visitation. The staff 

shall respect the minor’s privacy while 

reasonably preventing the unauthorized 

release of the minor and preventing the 

transfer of contraband; 


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(xii) A reasonable right to privacy, 

which shall include the right to: 

(A) Wear his or her own clothes, 

when available; 

(B) Retain a private space in the 

residential facility for the storage of 

personal belongings; 

(C) Talk privately on the phone, as 

permitted by applicable facility rules 

and regulations; 

(D) Visit privately with guests, as 

permitted by applicable facility rules 

and regulations; and 

(E) Receive and send uncensored mail 

unless there is a reasonable belief that 

the mail contains contraband. 

(xiii) When necessary, 

communication with adult relatives 

living in the United States and in 

foreign countries regarding legal issues 

related to the release and/or removal of 

the minor; 

(xiv) 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 apply for 

asylum or to request voluntary 

departure; and 

(xv) Attorney-client visits in 

accordance with applicable facility rules 

and regulations. 

(5) In the event of an emergency, a 

licensed, non-secure facility described 

in paragraph (i) of this section may 

transfer temporary physical custody of a 

minor prior to securing permission from 

DHS, but shall notify DHS of the 

transfer as soon as is practicable 

thereafter, but in all cases within 8 

hours. 

(j) Release of minors from DHS 

custody. DHS will make and record 

prompt and continuous efforts on its 

part toward the release of the minor. If 

DHS determines that detention of a 

minor who is not a UAC is not required 

to secure the minor’s timely appearance 

before DHS or the immigration court, or 

to ensure the minor’s safety or the safety 

of others, the minor may be released, as 

provided under existing statutes and 

regulations, pursuant to the procedures 

set forth in this paragraph. 

(1) DHS will release a minor from 

custody to a parent or legal guardian 

who is available to provide care and 

physical custody. 

(2) Prior to releasing to a parent or 

legal guardian, DHS will use all 

available reliable evidence to determine 

whether the relationship is bona fide. If 

no reliable evidence is available that 

confirms the relationship, the minor 

will be treated as a UAC and transferred 

into the custody of HHS as outlined in 

paragraph (f) of this section. 

(3) For minors in DHS custody, DHS 

shall assist without undue delay in 

making transportation arrangements to 

the DHS office nearest the location of 

the person to whom a minor is to be 

released. DHS may, in its discretion, 

provide transportation to minors. 

(4) Nothing herein shall require DHS 

to release a minor to any person or 

agency whom DHS has reason to believe 

may harm or neglect the minor or fail 

to present him or her before DHS or the 

immigration courts when requested to 

do so. 

(k) Procedures upon transfer.—(1) 

Possessions. Whenever a minor or UAC 

is transferred from one ICE placement to 

another, or from an ICE placement to an 

ORR placement, he or she will be 

transferred with all possessions and 

legal papers; provided, however, that if 

the minor or UAC’s possessions exceed 

the amount normally permitted by the 

carrier in use, the possessions shall be 

shipped to the minor or UAC in a timely 

manner. 

(2) Notice to counsel. A minor or UAC 

who is represented will not be 

transferred from one ICE placement to 

another, or from an ICE placement to an 

ORR placement, until notice is provided 

to his or her counsel, except in unusual 

and compelling circumstances, such as 

where the safety of the minor or UAC 

or others is threatened or the minor or 

UAC has been determined to be an 

escape-risk, or where counsel has 

waived such notice. In unusual and 

compelling circumstances, notice will 

be sent to counsel within 24 hours 

following the transfer. 

(l) Notice to parent of refusal of 

release or application for relief. (1) A 

parent shall be notified of any of the 

following requests if the parent is 

present in the United States and can 

reasonably be contacted, unless such 

notification is otherwise prohibited by 

law or DHS determines that notification 

of the parent would pose a risk to the 

minor’s safety or well-being: 

(i) A minor or UAC in DHS custody 

refuses to be released to his or her 

parent; or 

(ii) A minor or a UAC seeks release 

from DHS custody or seeks voluntary 

departure or a withdrawal of an 

application for admission, parole, or any 

form of relief from removal before DHS, 

and that the grant of such request or 

relief may effectively terminate some 

interest inherent in the parent-child 

relationship and/or the minor or UAC’s 

rights and interests are adverse with 

those of the parent. 

(2) Upon notification, the parent will 

be afforded an opportunity to present 

his or her views and assert his or her 

interest to DHS before a determination 

is made as to the merits of the request 

for relief. 

(m) Bond hearings. Bond 

determinations made by DHS for minors 

who are in removal proceedings 

pursuant to section 240 of the Act and 

who are also in DHS custody may be 

reviewed by an immigration judge 

pursuant to 8 CFR part 1236 to the 

extent permitted by 8 CFR 1003.19. 

Minors in DHS custody who are not in 

section 240 proceedings are ineligible to 

seek review by an immigration judge of 

their DHS custody determinations. 

(n) Retaking custody of a previously 

released minor. (1) In addition to the 

ability to make a UAC determination 

upon each encounter as set forth in 

paragraph (c) of this section, DHS may 

take a minor back into custody if there 

is a material change in circumstances 

indicating the minor is an escape-risk, a 

danger to the community, or has a final 

order of removal. If the minor is 

accompanied, DHS shall place the 

minor in accordance with paragraphs (e) 

and (i) of this section. If the minor is a 

UAC, DHS shall transfer the minor into 

HHS custody in accordance with 

paragraph (e) of this section. 

(2) DHS may take a minor back into 

custody if there is no longer a parent or 

legal guardian available to care for the 

minor. In these cases, DHS will treat the 

minor as a UAC and transfer custody to 

HHS as outlined in paragraph (e) of this 

section. 

(3) Minors who are not UACs and 

who are taken back into DHS custody 

may request a custody redetermination 

hearing in accordance with paragraph 

(m) of this section and to the extent 

permitted by 8 CFR 1003.19 . 

(o) Monitoring. (1) CBP and ICE each 

shall identify a Juvenile Coordinator for 

the purpose of monitoring compliance 

with the terms of this section. 

(2) The Juvenile Coordinators shall 

collect and periodically examine 

relevant statistical information about 

UACs and minors who remain in CBP 

or ICE custody for longer than 72 hours. 

Such statistical information may 

include but not necessarily be limited 

to: 

(i) Biographical information; 

(ii) Dates of custody; and 

(iii) Placements, transfers, removals, 

or releases from custody, including the 

reasons for a particular placement. 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Chapter IV 

For the reasons set forth in the 

preamble, part 410 of Chapter IV of title 

45 of the Code of Federal Regulations is 

proposed to be amended as follows: 

■ 10. Add part 410 to read as follows: 


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PART 410—CARE AND PLACEMENT 

OF UNACCOMPANIED ALIEN 

CHILDREN 

Subpart A—Care and Placement of 

Unaccompanied Alien Children 

Sec. 

410.100 Scope of this part 

410.101 Definitions 

410.102 ORR care and placement of 

unaccompanied alien children 

Subpart B—Determining the Placement of 

an Unaccompanied Alien Child 

Sec. 

410.200 Purpose of this subpart 

410.201 Considerations generally 

applicable to the placement of an 

unaccompanied alien child 

410.202 Placement of an unaccompanied 

alien child in a licensed program 

410.203 Criteria for placing an 

unaccompanied alien child in a secure 

facility 

410.204 Considerations when determining 

whether an unaccompanied alien child 

is an escape risk 

410.205 Applicability of § 410.203 for 

placement in a secure facility 

410.206 Information for unaccompanied 

alien children concerning the reasons for 

his or her placement in a secure or staff 

secure facility 

410.207 Custody of an unaccompanied 

alien child placed pursuant to this 

subpart 

410.208 Special needs minors 

410.209 Procedures during an emergency or 

influx 

Subpart C—Releasing an Unaccompanied 

Alien Child From ORR Custody 

Sec. 

410.300 Purpose of this subpart 

410.301 Sponsors to whom ORR releases an 

unaccompanied alien child 

410.302 Sponsor suitability assessment 

process requirements leading to release 

of an unaccompanied alien child from 

ORR custody to a sponsor 

Subpart D—Licensed Programs 

Sec. 

410.400 Purpose of this subpart 

410.401 Applicability of this subpart 

410.402 Minimum standards applicable to 

licensed programs 

410.403 Ensuring that licensed programs 

are providing services as required by 

these regulations 

Subpart E—Transportation of an 

Unaccompanied Alien Child 

Sec. 

410.500 Conducting transportation for an 

unaccompanied alien child in ORR’s 

custody 

Subpart F—Transfer of an Unaccompanied 

Alien Child 

Sec. 

410.600 Principles applicable to transfer of 

an unaccompanied alien child 

Subpart G—Age Determinations 

Sec. 

410.700 Conducting age determinations 

410.701 Treatment of an individual who 

appears to be an adult 

Subpart H—Unaccompanied Alien 

Children’s Objections to ORR 

Determinations 

Sec. 

410.800 Purpose of this Subpart 

410.801 Procedures 

410.810 Hearings 

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 Alien Children 

§ 410.100 Scope of this part. 

This part governs those aspects of the 

care, custody, and placement of 

unaccompanied alien children (UACs) 

agreed to in 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). ORR operates the UAC 

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, Public Law 

110–457, 8 U.S.C. 1232. This part does 

not govern or describe the entire 

program. 

§ 410.101 Definitions. 

DHS means the 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. 

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 UACs, 

or impacts other conditions provided by 

this part. 

Escape risk means there is a serious 

risk that an unaccompanied alien child 

(UAC) will attempt to escape from 

custody. 

Influx means a situation in which 

there are, at any given time, more than 

130 minors or UACs eligible for 

placement in a licensed facility under 

this part or corresponding provisions of 

DHS regulations, including those who 

have been so placed or are awaiting 

such placement. 

Licensed program means any 

program, agency, or organization that is 

licensed by an appropriate State agency 

to provide residential, group, or foster 

care services for dependent children, 

including a program operating group 

homes, foster homes, or facilities for 

special needs UAC. A licensed program 

must meet the standards set forth in 

§ 410.402 of this part. All homes and 

facilities operated by a licensed 

program, including facilities for special 

needs minors, are non-secure as 

required under State law. However, a 

facility for special needs minors may 

maintain that level of security permitted 

under State law which is necessary for 

the protection of a UAC or others in 

appropriate circumstances, e.g., cases in 

which a UAC has drug or alcohol 

problems or is mentally ill. 

ORR means the Office of Refugee 

Resettlement, Administration for 

Children and Families, Department of 

Health and Human Services. 

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. A secure 

facility does not need to meet the 

requirements of § 410.402, and is not 

defined as a ‘‘licensed program’’ or 

‘‘shelter’’ under this Part. 

Shelter means a licensed program that 

meets the standards set forth in 

§ 410.402 of this part. 

Special needs minor means a UAC 

whose mental and/or physical condition 

requires special services and treatment 

by staff. A UAC may have special needs 

due to drug or alcohol abuse, serious 

emotional disturbance, mental illness or 

retardation, or a physical condition or 

chronic illness that requires special 

services or treatment. A UAC who has 

suffered serious neglect or abuse may be 

considered a special needs minor if the 

UAC requires special services or 

treatment as a result of neglect or abuse. 

Sponsor, also referred to as custodian, 

means an individual (or entity) to whom 

ORR releases a UAC out of ORR 

custody. 

Staff secure 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 licensed programs set 

forth in § 410.402 of this part. A staff 

secure facility is designed for a UAC 

who requires close supervision but does 

not need placement in a secure facility. 

It provides 24-hour awake supervision, 

custody, care, and treatment. It 

maintains stricter security measures, 

such as intensive staff supervision, than 

a shelter in order to control problem 

behavior and to prevent escape. A staff 

secure facility may have a secure 

perimeter but is not equipped internally 

with major restraining construction or 

procedures typically associated with 

correctional facilities. 


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Unaccompanied alien child (UAC) 

means an individual who: Has no lawful 

immigration status in the United States; 

has not attained 18 years of age; and 

with respect to whom: There is no 

parent or legal guardian in the United 

States; or no parent or legal guardian in 

the United States is available to provide 

care and physical custody. When an 

alien previously determined to have 

been a UAC has reached the age of 18, 

when a parent or legal guardian in the 

United States is available to provide 

care and physical custody for such an 

alien, or when such alien has obtained 

lawful immigration status, the alien is 

no longer a UAC. An alien who is no 

longer a UAC is not eligible to receive 

legal protections limited to UACs. 

§ 410.102 ORR care and placement of 

unaccompanied alien children. 

ORR coordinates and implements the 

care and placement of UAC who are in 

ORR custody by reason of their 

immigration status. 

For all UAC in ORR custody, DHS and 

DOJ handle other matters, including 

immigration benefits and enforcement 

matters, as set forth in their respective 

statutes, regulations and other 

authorities. 

ORR shall hold UACs in facilities that 

are safe and sanitary and that are 

consistent with ORR’s concern for the 

particular vulnerability of minors. 

Within all placements, UAC shall be 

treated with dignity, respect, and 

special concern for their particular 

vulnerability. 

Subpart B—Determining the Placement 

of an Unaccompanied Alien Child 

§ 410.200 Purpose of this subpart. 

This subpart sets forth what ORR 

considers when placing a UAC in a 

particular ORR facility, in accordance 

with the Flores settlement agreement. 

§ 410.201 Considerations generally 

applicable to the placement of an 

unaccompanied alien child. 

(a) ORR places each UAC in the least 

restrictive setting that is in the best 

interest of the child and appropriate to 

the UAC’s age and special needs, 

provided that such setting is consistent 

with its interests to ensure the UAC’s 

timely appearance before DHS and the 

immigration courts and to protect the 

UAC’s well-being and that of others. 

(b) ORR separates UAC from 

delinquent offenders. 

(c) ORR makes reasonable efforts to 

provide placements in those 

geographical areas where DHS 

apprehends the majority of UAC. 

(d) Facilities where ORR places UAC 

will provide access to toilets and sinks, 

drinking water and food as appropriate, 

medical assistance if the UAC is in need 

of emergency services, adequate 

temperature control and ventilation, 

adequate supervision to protect UAC 

from others, and contact with family 

members who were arrested with the 

minor. 

(e) If there is no appropriate licensed 

program immediately available for 

placement of a UAC pursuant to Subpart 

B, and no one to whom ORR may 

release the UAC pursuant to Subpart C, 

the UAC may be placed in an ORRcontracted facility, having separate 

accommodations for minors, or a State 

or county juvenile detention facility. In 

addition to the requirement that UAC 

shall be separated from delinquent 

offenders, every effort must be taken to 

ensure that the safety and well-being of 

the UAC detained in these facilities are 

satisfactorily provided for by the staff. 

ORR makes all reasonable efforts to 

place each UAC in a licensed program 

as expeditiously as possible. 

(f) ORR makes and records the prompt 

and continuous efforts on its part 

toward family reunification. ORR 

continues such efforts at family 

reunification for as long as the minor is 

in ORR custody. 

§ 410.202 Placement of an unaccompanied 

alien child in a licensed program. 

(a) ORR places UAC into a licensed 

program promptly after a UAC is 

transferred to ORR legal custody, except 

in the following circumstances: 

(1) UAC meeting the criteria for 

placement in a secure facility set forth 

in § 410.203 of this part; 

(2) As otherwise required by any court 

decree or court-approved settlement; or, 

(3) In the event of an emergency or 

influx of UAC into the United States, in 

which case ORR places the UAC as 

expeditiously as possible in accordance 

with § 410.209 of this part; or 

(4) If a reasonable person would 

conclude that the UAC is an adult 

despite his or her claims to be a minor. 

§ 410.203 Criteria for placing an 

unaccompanied alien child in a secure 

facility. 

(a) Notwithstanding § 410.202 of this 

part, ORR may place a UAC in a secure 

facility if the UAC: 

(1) Has been charged with, is 

chargeable, or has been convicted of a 

crime, or is the subject of delinquency 

proceedings, has been adjudicated 

delinquent, or is chargeable with a 

delinquent act, and where ORR deems 

those circumstances demonstrate that 

the UAC poses a danger to self or others. 

‘‘Chargeable’’ means that ORR has 

probable cause to believe that the UAC 

has committed a specified offense. This 

provision does not apply to a UAC 

whose offense is: 

(i) 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 

(ii) A petty offense, which is not 

considered grounds for stricter means of 

detention in any case; 

(2) While in DHS or ORR’s custody or 

while in the presence of an immigration 

officer, has committed, or has made 

credible threats to commit, a violent or 

malicious act (whether directed at 

himself/herself or others); 

(3) Has engaged, while in a licensed 

program or staff secure facility, in 

conduct that has proven to be 

unacceptably disruptive of the normal 

functioning of the licensed program or 

staff secure facility in which he or she 

has been placed and removal is 

necessary to ensure the welfare of the 

UAC or others, as determined by the 

staff of the licensed program or staff 

secure facility (e.g., drug or alcohol 

abuse, stealing, fighting, intimidation of 

others, or sexually predatory behavior), 

and ORR determines the UAC poses a 

danger to self or others based on such 

conduct; 

(4) For purposes of placement in a 

secure RTC, if a licensed psychologist or 

psychiatrist determines that the UAC 

poses a risk of harm to self or others. 

(5) Is otherwise a danger to self or 

others. 

(b) ORR Federal Field Specialists 

review and approve all placements of 

UAC in secure facilities consistent with 

legal requirements. 

§ 410.204 Considerations when 

determining whether an unaccompanied 

alien child is an escape risk. 

When determining whether a UAC is 

an escape risk, ORR considers, among 

other factors, whether: 

(a) The UAC is currently under a final 

order of removal; 

(b) The UAC’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 UAC is indebted 

to organized smugglers for his or her 

transport; or 

(4) A voluntary departure or a 

previous removal from the United States 

pursuant to a final order of removal; and 

(c) The UAC has previously 

absconded or attempted to abscond from 

state or federal custody. 


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§ 410.205 Applicability of § 410.203 for 

placement in a secure facility. 

ORR does not place a UAC in a secure 

facility pursuant to § 410.203 of this part 

if less restrictive alternatives are 

available and appropriate under the 

circumstances. ORR may place a UAC in 

a staff secure facility or another licensed 

program as an alternative to a secure 

facility. 

§ 410.206 Information for unaccompanied 

alien children concerning the reasons for 

his or her placement in a secure or staff 

secure facility. 

Within a reasonable period of time, 

ORR provides each UAC placed or 

transferred to a secure or staff secure 

facility with a notice of the reasons for 

the placement in a language the UAC 

understands. 

§ 410.207 Custody of an unaccompanied 

alien child placed pursuant to this subpart. 

A UAC who is placed in a licensed 

program pursuant to this subpart 

remains in the custody of ORR, and may 

only be transferred or released under its 

authority. However, in the event of an 

emergency, a licensed program may 

transfer temporarily the physical 

placement of a UAC prior to securing 

permission from ORR, but must notify 

ORR of the transfer as soon as possible, 

but in all cases within eight hours of the 

transfer. Upon release to an approved 

sponsor, a UAC is no longer in the 

custody of ORR. 

§ 410.208 Special needs minors. 

ORR assesses each UAC to determine 

if he or she has special needs, and if so, 

places the UAC, whenever possible, in 

a licensed program in which ORR places 

unaccompanied alien children without 

special needs, but which provides 

services and treatment for such special 

needs. 

§ 410.209 Procedures during an 

emergency or influx. 

In the event of an emergency or influx 

that prevents the prompt placement of 

UAC in licensed programs, ORR makes 

all reasonable efforts to place each UAC 

in a licensed program as expeditiously 

as possible using the following 

procedures: 

(a) ORR maintains an emergency 

placement list of at least 80 beds at 

programs licensed by an appropriate 

state agency that are potentially 

available to accept emergency 

placements. 

(b) ORR implements its contingency 

plan on emergencies and influxes. 

(c) Within one business day of the 

emergency or influx, ORR, if necessary, 

contacts the programs on the emergency 

placement list to determine available 

placements. To the extent practicable, 

ORR will attempt to locate emergency 

placements in geographic areas where 

culturally and linguistically appropriate 

community services are available. 

(d) In the event that the number of 

UAC needing placement exceeds the 

available appropriate placements on the 

emergency placement list, ORR works 

with governmental and 

nongovernmental organizations to locate 

additional placements through licensed 

programs, county social services 

departments, and foster family agencies. 

(e) ORR maintains a list of UAC 

affected by the emergency or influx 

including each UAC’s: 

(1) Name; 

(2) Date and country of birth; 

(3) Date of placement in ORR’s 

custody; and 

(4) Place and date of current 

placement. 

(f) Each year ORR reevaluates the 

number of regular placements needed 

for UAC to determine whether the 

number of regular placements should be 

adjusted to accommodate an increased 

or decreased number of UAC eligible for 

placement in licensed programs. 

Subpart C—Releasing an 

Unaccompanied Alien Child From ORR 

Custody 

§ 410.300 Purpose of this subpart. 

This subpart covers the policies and 

procedures used to release, without 

unnecessary delay, a UAC from ORR 

custody to an approved sponsor. 

§ 410.301 Sponsors to whom ORR 

releases an unaccompanied alien child. 

(a) ORR releases a UAC to an 

approved sponsor without unnecessary 

delay, but may continue to retain 

custody of a UAC if ORR determines 

that continued custody is necessary to 

ensure the UAC’s safety or the safety of 

others, or that continued custody is 

required to secure the UAC’s timely 

appearance before DHS or the 

immigration courts. 

(b) When ORR releases a UAC without 

unnecessary delay to an approved 

sponsor, it releases in the following 

order of preference: 

(1) A parent; 

(2) A legal guardian; 

(3) An adult relative (brother, sister, 

aunt, uncle, or grandparent); 

(4) An adult individual or entity 

designated by the parent or legal 

guardian as capable and willing to care 

for the UAC’s well-being in: 

(i) A declaration signed under penalty 

of perjury before an immigration or 

consular officer, or 

(ii) Such other document that 

establishes to the satisfaction of ORR, in 

its discretion, the affiant’s parental 

relationship or guardianship; 

(5) A licensed program willing to 

accept legal custody; or 

(6) An adult individual or entity 

seeking custody, in the discretion of 

ORR, when it appears that there is no 

other likely alternative to long term 

custody, and family reunification does 

not appear to be a reasonable 

possibility. 

§ 410.302 Sponsor suitability assessment 

process requirements leading to release of 

an unaccompanied alien child from Federal 

custody to a proposed sponsor. 

(a) The licensed program providing 

care for the UAC shall make and record 

the prompt and continuous efforts on its 

part towards family reunification and 

the release of the UAC pursuant to the 

provisions of this section. 

(b) ORR requires a background check, 

including verification of identity and 

which may include verification of 

employment of the individuals offering 

support, prior to release. 

(c) ORR also may require further 

suitability assessment, which may 

include interviews of members of the 

household, investigation of the living 

conditions in which the UAC would be 

placed and the standard of care he or 

she would receive, a home visit, a 

fingerprint-based background and 

criminal records check on the 

prospective sponsor and on adult 

residents of the prospective sponsor’s 

household, and follow-up visits after 

release. Any such assessment also takes 

into consideration the wishes and 

concerns of the UAC. 

(d) If the conditions identified in 

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

met, and require a home study, no 

release to a sponsor may occur in the 

absence of such a home study. 

(e) The proposed sponsor must sign 

an affidavit of support and a custodial 

release agreement of the conditions of 

release. The custodial release agreement 

requires that the sponsor: 

(1) Provide for the UAC’s physical, 

mental, and financial well-being; 

(2) Ensure the UAC’s presence at all 

future proceedings before DHS and the 

immigration courts; 

(3) Ensure the UAC reports for 

removal from the United States if so 

ordered; 

(4) Notify ORR, DHS, and the 

Executive Office for Immigration 

Review of any change of address within 

five days following a move; 

(5) Notify ORR and DHS at least five 

days prior to the sponsor’s departure 

from the United States, whether the 

departure is voluntary or pursuant to a 

grant of voluntary departure or an order 

of removal; 


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(6) Notify ORR and DHS if 

dependency proceedings involving the 

UAC are initiated and also notify the 

dependency court of any immigration 

proceedings pending against the UAC; 

(7) Receive written permission from 

ORR if the sponsor decides to transfer 

legal custody of the UAC to someone 

else. 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 UAC 

prior to securing permission from ORR, 

but the sponsor must notify ORR as 

soon as possible and no later than 72 

hours after the transfer; and 

(8) Notify ORR and DHS as soon as 

possible and no later than 24 hours of 

learning that the UAC has disappeared, 

has been threatened, or has been 

contacted in any way by an individual 

or individuals believed to represent an 

immigrant smuggling syndicate or 

organized crime. 

(f) ORR is not required to release a 

UAC to any person or agency it has 

reason to believe may harm or neglect 

the UAC or fail to present him or her 

before DHS or the immigration courts 

when requested to do so. 

Subpart D—Licensed Programs 

§ 410.400 Purpose of this subpart. 

This subpart covers the standards that 

licensed programs must meet in keeping 

with the principles UACs in custody 

with dignity, respect and special 

concern for their particular vulnerability 

§ 410.401 Applicability of this subpart. 

This subpart applies to all licensed 

programs, regardless of whether they are 

providing care in shelters, staff secure 

facilities, residential treatment centers, 

or foster care and group home settings. 

§ 410.402 Minimum standards applicable 

to licensed programs. 

Licensed programs must: 

(a) Be licensed by an appropriate State 

agency 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; 

(c) Provide or arrange for the 

following services for each UAC in care, 

including: 

(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, 

and emergency health care services, 

including a complete medical 

examination (including screening for 

infectious disease) within 48 hours of 

admission, excluding weekends and 

holidays, unless the UAC was recently 

examined at another facility; 

appropriate immunizations in 

accordance with the U.S. Public Health 

Service (PHS), Center for Disease 

Control; administration of prescribed 

medication and special diets; 

appropriate mental health interventions 

when necessary; 

(3) An individualized needs 

assessment that must include: 

(i) Various initial intake forms; 

(ii) Essential data relating to the 

identification and history of the UAC 

and family; 

(iii) Identification of the UAC’s 

special needs including any specific 

problems that appear to require 

immediate intervention; 

(iv) An educational assessment and 

plan; 

(v) An assessment of family 

relationships and interaction with 

adults, peers and authority figures; 

(vi) A statement of religious 

preference and practice; 

(vii) An assessment of the UAC’s 

personal goals, strengths and 

weaknesses; and 

(viii) 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; and 

(4) Educational services appropriate 

to the UAC’s level of development and 

communication skills 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 a UAC of 

appropriate reading materials in 

languages other than English for use 

during the UAC’s leisure time; 

(5) 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; 

(6) At least one individual counseling 

session per week conducted by trained 

social work staff with the specific 

objectives of reviewing the UAC’s 

progress, establishing new short-term 

objectives, and addressing both the 

developmental and crisis-related needs 

of each UAC; 

(7) Group counseling sessions at least 

twice a week. This is usually an 

informal process and takes place with 

all the UACs present. This is a time 

when new UACs are given the 

opportunity to get acquainted with the 

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 program activities, etc. This is 

a time for staff and UACs to discuss 

whatever is on their minds and to 

resolve problems; 

(8) 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; 

(9) Upon admission, a comprehensive 

orientation regarding program intent, 

services, rules (provided in writing and 

verbally), expectations and the 

availability of legal assistance; 

(10) Whenever possible, access to 

religious services of the UAC’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 UAC’s privacy while 

reasonably preventing the unauthorized 

release of the UAC; 

(12) A reasonable right to privacy, 

which must include the right to: 

(i) Wear his or her own clothes, when 

available; 

(ii) Retain a private space in the 

residential facility, group or foster home 

for the storage of personal belongings; 

(iii) Talk privately on the phone, as 

permitted by the house rules and 

regulations; 

(iv) Visit privately with guests, as 

permitted by the house rules and 

regulations; and 

(v) Receive and send uncensored mail 

unless there is a reasonable belief that 

the mail contains contraband; 

(13) Family reunification services 

designed to identify relatives in the 

United States as well as in foreign 

countries and assistance in obtaining 

legal guardianship when necessary for 

release of the UAC; and 

(14) Legal services information 

regarding the availability of free legal 

assistance, the right to be represented by 

counsel at no expense to the 

government, the right to a removal 

hearing before an immigration judge, the 


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right to apply for asylum or to request 

voluntary departure in lieu of removal; 

(d) Deliver services in a manner that 

is sensitive to the age, culture, native 

language and the complex needs of each 

UAC; 

(e) Formulate program rules and 

discipline standards with consideration 

for the range of ages and maturity in the 

program and that are culturally sensitive 

to the needs of each UAC to ensure the 

following: 

(1) UAC must not be subjected to 

corporal punishment, humiliation, 

mental abuse, or punitive interference 

with the daily functions of living, such 

as eating or sleeping: and 

(2) Any sanctions employed must not: 

(i) Adversely affect either a UAC’s 

health, or physical or psychological 

well-being; or 

(ii) Deny UAC regular meals, 

sufficient sleep, exercise, medical care, 

correspondence privileges, or legal 

assistance; 

(f) Develop a comprehensive and 

realistic individual plan for the care of 

each UAC in accordance with the UAC’s 

needs as determined by the 

individualized needs assessment. 

Individual plans must be implemented 

and closely coordinated through an 

operative case management system; 

(g) Develop, maintain and safeguard 

individual client case records. Licensed 

programs must develop a system of 

accountability that preserves the 

confidentiality of client information and 

protects the records from unauthorized 

use or disclosure; and 

(h) Maintain adequate records and 

make regular reports as required by ORR 

that permit ORR to monitor and enforce 

these regulations and other 

requirements and standards as ORR may 

determine are in the interests of the 

UAC. 

§ 410.403 Ensuring that licensed programs 

are providing services as required by these 

regulations. 

ORR monitors compliance with the 

terms of these regulations. 

Subpart E—Transportation of an 

Unaccompanied Alien Child 

§ 410.500 Conducting transportation for an 

unaccompanied alien child in ORR’s 

custody. 

(a) ORR does not transport UAC with 

adult detainees. 

(b) When ORR plans to release a UAC 

from its custody under the family 

reunification provisions at sections 

410.201 and 410.302 of this part, ORR 

assists without undue delay in making 

transportation arrangements. ORR may, 

in its discretion, provide transportation 

to UAC. 

Subpart F—Provisions for Transfer of 

an Unaccompanied Alien Child 

§ 410.600 Principles applicable to transfer 

of an unaccompanied alien child. 

(a) ORR transfers a UAC from one 

placement to another with all of his or 

her possessions and legal papers. ORR 

takes all necessary precautions for the 

protection of UACs during 

transportation with adults. 

(b) If the UAC’s possessions exceed 

the amount permitted normally by the 

carrier in use, the possessions are 

shipped to the UAC in a timely manner. 

(c) ORR does not transfer a UAC who 

is represented by counsel without 

advance notice to his or her legal 

counsel. However, ORR may provide 

notice to counsel within 24 hours of the 

transfer in unusual and compelling 

circumstances such as: 

(1) Where the safety of the UAC or 

others has been threatened; 

(2) The UAC has been determined to 

be an escape risk consistent with 

§ 410.204 of this part; or 

(3) Where counsel has waived such 

notice. 

Subpart G—Age Determinations 

§ 410.700 Conducting age determinations. 

Procedures for determining the age of 

an individual must take into account 

multiple forms of 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 conducted by a 

medical professional or to submit to 

other appropriate procedures to verify 

his or her age. If ORR subsequently 

determines that such an individual is a 

UAC, he or she will be treated in 

accordance with ORR’s UAC regulations 

for all purposes. 

§ 410.701 Treatment of an individual who 

appears to be an adult. 

If, the procedures in § 410.700 would 

result in a reasonable person concluding 

that an individual is an adult, despite 

his or her claim to be under the age of 

18, ORR must treat such person as an 

adult for all purposes. 

Subpart H—Unaccompanied Alien 

Children’s Objections to ORR 

Determinations 

§ 410.800 Purpose of this subpart. 

This subpart concerns UACs’ 

objections to ORR placement. 

§ 410.801 Procedures. 

(a) For UACs not placed in licensed 

programs, ORR shall—within a 

reasonable period of time—provide a 

notice of the reasons for housing the 

minor in secure or staff secure facility. 

Such notice shall be in a language the 

UAC understands. 

(b) ORR shall promptly provide each 

UAC not released with: 

(i) A list of free legal services 

providers compiled by ORR and that is 

provided to UAC as part of a Legal 

Resource Guide for UAC (unless 

previously given to the UAC); and 

(ii) The following explanation of the 

right of potential review: ORR usually 

houses persons under the age of 18 in 

an open setting, such as a foster or 

group home, and not in detention 

facilities. If you believe that you have 

not been properly placed or that you 

have been treated improperly, you may 

call a lawyer to seek assistance. If you 

cannot afford a lawyer, you may call one 

from the list of free legal services given 

to you with this form. 

§ 410.810 Hearings 

(a) A UAC may request that an 

independent hearing officer employed 

by HHS determine, through a written 

decision, whether the UAC would 

present a risk of danger to the 

community or risk of flight if released. 

(1) Requests under this section may be 

made by the UAC, his or her legal 

representative, or his or her parent or 

legal guardian. 

(2) UACs placed in secure or staff 

secure facilities will receive a notice of 

the procedures under this section and 

may use a form provided to them to 

make a written request for a hearing 

under this section. 

(b) In hearings conducted under this 

section, the burden is on the UAC to 

show that he or she will not be a danger 

to the community (or risk of flight) if 

released, using a preponderance of the 

evidence standard. 

(c) In hearings under this section, the 

UAC may be represented by a person of 

his or her choosing, at no cost to the 

government. The UAC may present oral 

and written evidence to the hearing 

officer and may appear by video or 

teleconference. ORR may also choose to 

present evidence either in writing, or by 

appearing in person, or by video or 

teleconference. 

(d) A hearing officer’s decision that a 

UAC would not be a danger to the 

community (or risk of flight) 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 to the 

Assistant Secretary of the 

Administration for Children and 

Families. Any such appeal request shall 

be in writing, and must be received 


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within 30 days of the hearing officer 

decision. The Assistant Secretary will 

reverse a hearing officer decision only if 

there is a clear error of fact, or if the 

decision includes an error of law. 

Appeal to the Assistant Secretary shall 

not effect a stay of the hearing officer’s 

decision to release the UAC, unless 

within five business days of such 

hearing officer decision, the Assistant 

Secretary issues a decision in writing 

that release of the UAC would result in 

a significant danger to the community. 

Such a stay decision must include a 

description of behaviors of the UAC 

while in care and/or documented 

criminal or juvenile behavior records 

from the UAC demonstrating that the 

UAC would present a danger to 

community if released. 

(f) Decisions under this section are 

final and binding on the Department, 

and a UAC may only seek another 

hearing under this section if the UAC 

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 ORR can show 

that a material change in circumstances 

means the UAC should no longer be 

released. 

(g) This section cannot be used to 

determine whether a UAC has a suitable 

sponsor, and neither the hearing officer 

nor the Assistant Secretary may order 

the UAC released. 

(h) This section may not be invoked 

to determine the UAC’s placement 

while in ORR custody. Nor may this 

section be invoked to determine level of 

custody for the UAC. 

Kirstjen M. Nielsen, 

Secretary, Department of Homeland Security. 

Alex M. Azar II, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2018–19052 Filed 9–6–18; 8:45 am] 

BILLING CODE 9111–28–P; 4184–45–P 


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