INS Proposed Rule on Juvenile Processing after Flores v. Reno
[Proposed Rules]
[Page 39759-39763]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy98-25]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 236
[INS No. 1906-98]
RIN 1115-AFO5
Processing, Detention, and Release of Juveniles
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization (Service) regulations by establishing the procedures for processing juveniles in Service custody. The new rule sets guidelines for the release of juveniles from custody and the detention of unreleased juveniles in state-licensed programs and detention facilities. The rule also governs the transportation and transfer of juveniles in Service custody.
DATES: Written comments must be submitted on or before September 22, 1998.
ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1906-98 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: John J. Pogash, Headquarters Juvenile Coordinator, Immigration and Naturalization Service, 425 I Street, NW. Room 3008, Washington, DC 20536, telephone (202) 514-1970.
SUPPLEMENTARY INFORMATION:
Background
What is the basis for the proposed rule?
The Service has settled Flores v. Reno, the class-action lawsuit filed as a challenge to the Service's policies on the detention, processing, and release of juveniles. Although certain aspects of the lawsuit were won previously by either the plaintiffs or the Service, the parties resolved the remaining aspects in a comprehensive settlement that addressed juvenile processing, transport, release, and detention. The substantive terms of the settlement form the basis for the proposed rule.
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Has there been any previous opportunity to comment on the terms of the proposed rule?
The parties to the Flores v. Reno lawsuit provided the plaintiff class, composed of all juveniles in Service custody, a 30-day opportunity to object to the terms of the settlement agreement. In the absence of any objection, the federal court approved the terms of the settlement agreement, which now forms the basis for the proposed rule.
Explanation of Changes
What changes are being made to the regulations?
The proposed rule establishes the framework for the processing, release, and detention of juveniles in Service custody. The proposed rule revises Sec. 236.3. The section is redesignated: ``Sec. 236.3 Processing, detention, and release of juveniles.''
The rule maintains the substance of former sections Sec. 242.24(f), (g), and (h) regarding notice to parents of juveniles' applications for relief, voluntary departure, and the notice and request for disposition. The language of former Sec. 242.24(g) and (h) has been amended and redesignated as, respectively, paragraphs (c)(3) and (c)(2) of this section. The rule amends those provisions to conform more accurately to the terms of the federal court's ruling in Perez-Funez v. District Director, 619 F. Supp. 656 (C.D. Cal. 1985). The court's decision in that case required the Service, prior to offering voluntary departure from the United States in lieu of deportation, to provide a simplified rights advisal to each juvenile who was unaccompanied by a natural or lawful parent when taken into custody. (The court also required the Service to provide other safeguards, such as the opportunity to place telephone calls to family members, friends, or legal representatives prior to being offered voluntary departure. The Service previously implemented those safeguards at former Sec. 242.24(g) and now maintains them in paragraph (c)(3) of this section.) The required rights advisal is incorporated into the Form I- 770, Notice of Rights and Request for Disposition. This form explains the minor's rights to make telephone calls, to be represented by an attorney, and to have a removal hearing. Although the Form I-770 accurately states that the proper recipients of the form are those juveniles who are unaccompanied by a natural or lawful parent, the former regulation at Sec. 242.24(g) and (h) was overly broad in stating that the Service should apply the voluntary departure procedures to any juvenile alien apprehended by the Service. Therefore, the proposed rule amends the regulatory language to comport with the court's ruling in Perez-Funez and the instructions on the Form I-770.
Similarly, the rule proposes to amend the former language of Sec. 242.24(h) to make it clear that the Service must serve the Notice of Rights (Form I-770) only upon those juveniles who are not ``arriving aliens'' as defined at Sec. 1.1(q). That section defines an ``arriving alien'' as ``an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. . . .'' The amended language in paragraph (c)(2) of this section accurately reflects that section 240B of the Immigration and Nationality Act (the Act) explicitly states that voluntary departure is not available to ``an alien who is arriving in the United States.'' The proposed rule's amended language will avoid any confusion caused by the Service of the Form I-770 on an arriving alien juvenile.
Adding new regulatory language on the detention and release of juveniles in custody, the proposed rule provides that the Service shall place detained juveniles in the least restrictive setting appropriate to the juvenile's age and circumstances, so long as the placement is consistent with the need to protect the well-being of the juvenile or others and to ensure the juvenile's presence before the Service or the immigration court. The Service will separate unaccompanied juveniles from unrelated adults in detention. If the Service does not release the juvenile immediately, the Service will hold the juvenile temporarily in a Service facility having separate accommodations for juveniles, or in a juvenile detention facility having separate accommodations for non- delinquent juveniles, pending placement in a state-licensed residential program.
The rule provides that if detention of the juvenile is not necessary to protect the juvenile or others, or to ensure that he or she will appear in immigration court, the Service shall release him or her to a custodian meeting certain qualifications. The custodian will be required to sign an agreement to perform several duties, including providing for the juvenile's needs and ensuring the juvenile's presence in immigration court. The Service may require a suitability assessment and a home visit prior to releasing a juvenile to a custodian.
If a juvenile is to remain in Service custody pending the completion of his or her immigration court proceedings, the Service shall place the juvenile in a State-licensed residential program. The rule requires the Service to place juveniles in such programs within given time periods, depending on the circumstances of the case.
The Service may place certain juveniles in more secure detention. If a juvenile has committed a crime or a juvenile delinquent offense, has committed or threatened to commit violent acts, has engaged in disruptive behavior, is an escape risk, or is in danger, the Service may place him or her in a juvenile detention facility or a Service facility having separate accommodations for juveniles.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. The rule addresses only government operations. It places no new obligations on small entities or other private individuals or businesses.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will 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 on the ability of United States-based companies to compete with foreign- based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice, Immigration and
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Naturalization Service, to a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review, and has not been reviewed by the Office of Management and Budget.
Executive Order 12612
The regulation adopted herein will 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. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.
List of Subjects in 8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
Accordingly, part 236 of chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
1. The authority citation for part 236 continues to read as follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 8 CFR part 2.
2. Section 236.3 is revised to read as follows:
Sec. 236.3 Processing, detention, and release of juveniles.
(a) Definitions. As used in this part, the term: Chargeable means that the Service has reasonable grounds to believe that the individual has committed a specified offense.
Escape-risk means that there is a serious risk that the juvenile will attempt to escape from custody. Factors to consider when determining whether a juvenile is an escape-risk include, but are not limited to, whether:
(i) The juvenile is currently under a final order of removal, deportation or exclusion;
(ii) The juvenile's immigration history includes: a prior breach of a bond; a failure to appear before the Service or the immigration court; evidence that the juvenile is indebted to organized smugglers for his or her transport; or a voluntary departure or a previous removal from the United States pursuant to a final order of removal, deportation, or exclusion;
(iii) The juvenile has previously absconded or attempted to abscond from Service custody.
Juvenile means a person under the age of 18 years. However, individuals who have been emancipated by a state court or convicted and incarcerated for a criminal offense as an adult are not considered juveniles. Such individuals must be treated as adults for all purposes, including confinement and release on bond. Similarly, if a reasonable person would conclude that an individual is an adult despite his or her claims to be a juvenile, the Service shall treat such person as an adult for all purposes, including confinement and release on bond or recognizance. The Service may require such an individual to submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify his or her age. If the Service subsequently determines that such an individual is a juvenile, he or she will be treated as a juvenile for all purposes.
Licensed program means any program, agency, or organization licensed by an appropriate state agency and contracted by the Service to provide residential, group, or foster care services for dependent juveniles. The term may include a program operating group homes, foster homes, or facilities for juveniles with special needs, i.e., mental and/or physical conditions requiring special services and treatment by staff. When possible, the Service shall place juveniles having special needs in licensed programs with juveniles without special needs. All homes and facilities operated by licensed programs shall be non-secure as required under state law. All licensed programs must also meet the standards for program content imposed by the Service.
Medium security facility means a state-licensed facility that is designed for juveniles who require close supervision but not secure detention. Such a facility provides 24-hour awake supervision and maintains stricter security measures, such as intense staff supervision, than a licensed program. It may have a secure perimeter but shall not be equipped internally with major restraining construction or procedures typically associated with correctional facilities. A medium security facility must also meet the standards for program content imposed on licensed programs by the Service.
Secure facility means a state or county juvenile detention facility or a Service or Service-contract facility that has separate accommodations for juveniles.
(b) General policy. The Service will place each detained juvenile in the least restrictive setting appropriate to the juvenile's age and special needs, provided that such setting is consistent with the need to ensure the juvenile's timely appearance before the Service or the immigration court and to protect the juvenile's well-being and that of others. Service officers are not required to release a juvenile to any person or agency who they have reason to believe may harm or neglect the juvenile or fail to present him or her before the Service or the immigration court when requested to do so.
(c) Processing. (1) Current list of counsel. Every juvenile placed in removal proceedings under section 240 of the Act shall be provided a current list of pro bono counsel prepared pursuant to section 239(b)(2) of the Act.
(2) Notice of rights and request for disposition. When the Service apprehends a juvenile alien who is not an arriving alien and who is unaccompanied by a natural or lawful parent, the Service shall promptly give him or her a Form I-770, Notice of Rights and Request for Disposition. If the juvenile is less than 14 years of age or is unable to understand the Form I-770, it shall be read and explained to the juvenile in a language he or she understands. In the event a juvenile who has requested a hearing pursuant to the notice subsequently decides to accept voluntary departure, a new Form I-770 shall be given to, and signed by, the juvenile.
(3) Voluntary departure. Each juvenile who is apprehended in the immediate vicinity of the border while unaccompanied by a natural or lawful parent, and who resides permanently in Mexico or Canada, shall be informed, prior to presentation of the voluntary departure form, that he or she may make a telephone call to a parent, close relative, friend, or an organization found on the current list of pro bono counsel. Each other juvenile who is unaccompanied by a natural or lawful parent shall be provided access to a telephone and must, in fact, communicate with either a parent, adult relative, friend, or an organization found on the current list of pro bono counsel prior to presentation of the voluntary departure form. If such juvenile, of his or her own volition, asks to contact a consular officer and does, in fact, make such contact, the requirements of this section are satisfied.
(4) Notice of right to bond redetermination and judicial review of placement. A juvenile charged under
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section 237 of the Act and placed in removal proceedings shall be afforded a bond redetermination hearing before an immigration judge in every case, unless the juvenile indicates on the Form I-286, Notice of Custody Determination, that he or she refuses such a hearing. A juvenile who is not released shall be provided a written explanation of the right to judicial review of his or her placement.
(5) Notice to parent of application for relief. 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 interests inherent in the parent-child relationship and/or the juvenile's rights and interests are adverse with 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 to the district director or immigration judge before a determination is made as to the merits of the request for relief.
(d) Custody. (1) Placement immediately following arrest. Following a juvenile's arrest, the Service will provide adequate supervision to protect the juvenile from others and will permit contact with family members who were arrested with the juvenile. The Service will separate unaccompanied juveniles from unrelated adults. Where such segregation is not immediately possible, an unaccompanied juvenile will not be detained with an unrelated adult for more than 24 hours.
(2) Temporary placement. If the juvenile is not immediately released from custody under paragraph (e) of this section, and no licensed program is available to care for him or her, the juvenile may be placed temporarily in a secure facility, provided that it separates non-delinquent juveniles in Service custody from delinquent offenders.
(3) Placement in licensed programs.
(i) Juveniles who remain in Service custody pending the conclusion of their immigration court proceedings must be placed in a licensed program within:
(A) Three calendar days if the juvenile was apprehended in a Service district in which a licensed program is located and has space available;
(B) Five business days if the juvenile must be transported from remote areas for processing or speaks an unusual language requiring a special interpreter for processing; or
(C) Five calendar days in all other cases.
(ii) These time requirements shall not apply, however, if a court decree or court-approved settlement requires otherwise, or an emergency or influx of juveniles into the United States prevents compliance, in which case all juveniles should be placed in licensed programs as expeditiously as possible. For purposes of this paragraph, the term emergency means an act or event (such as a natural disaster, facility fire, civil disturbance, or medical emergency) that prevents timely placement of juveniles. The phrase influx of juveniles into the United States means any time at which the Service has more than 130 juveniles eligible for placement in licensed programs, including those already so placed and those awaiting placement.
(4) Secure and supervised detention. Notwithstanding paragraph (d)(3) of this section, a juvenile may be held in or transferred to a secure facility, whenever the district director or chief patrol agent determines that the juvenile;
(i) Has been charged with, is chargeable, or has been convicted of a crime, or is the subject of juvenile delinquency proceedings, is chargeable with a delinquent act, or has been adjudicated delinquent, unless the juvenile's offense is:
(A) An isolated offense that was not within a pattern of criminal activity and did not involve violence against a person or the use or carrying of a weapon (such as breaking and entering, vandalism DUI, etc.); or
(B) A petty offense, which is not considered grounds for stricter means of detention in any case (such as shoplifting, joy riding, disturbing the peace, etc.);
(ii) Has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself or herself or others) while in Service legal custody or while in the presence of a Service officer;
(iii) Has engaged in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed program in which he or she has been placed and removal is necessary to ensure the welfare of the juvenile or others, as determined by the staff of the licensed program (such as drug or alcohol abuse, stealing, fighting, intimidation of others, etc.);
(iv) Is an escape-risk; or
(v) Must be held in a secure facility for his or her own safety, such as when the Service has reason to believe that a smuggler would abduct or coerce a particular juvenile to secure payment of smuggling fees.
(5) Alternatives. The Service will not place a juvenile in a secure facility pursuant to paragraph (d)(4) of this section if less restrictive alternatives are available and appropriate in the circumstances, such as transfer to a medium security facility that provides intensive staff supervision and counseling services or transfer to another licensed program.
(6) Approval and notice. All determinations to place a juvenile in a secure facility will be reviewed and approved by the Service regional Juvenile Coordinator. Service officers must also provide any juvenile not placed in a licensed program with written notice of the reasons for housing the juvenile in a secure or medium-security facility.
(7) Service custody. All juveniles not released under paragraph (e) of this section remain in the legal custody of the Service and may only be transferred or released under its authority; provided, however, that in the event of an emergency, a licensed program may transfer temporary physical custody of a juvenile prior to securing permission from the Service but shall notify the Service of the transfer as soon as is practicable, but in all cases within 8 hours.
(e) Release. If the Service determines that detention of a juvenile is not required to secure timely appearance before the Service or the immigration court or to ensure the juvenile's safety or that of others, the Service shall release the juvenile from custody, in the following order of preference, to:
(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 juvenile's well-being in:
(i) A declaration signed under penalty of perjury before an immigration or consular officer, or
(ii) Such other documentation that establishes to the satisfaction of the Service, in its discretion, that the person who is designating the custodian is, in fact, the juvenile's parent or guardian;
(5) A program, agency, or organization licensed by an appropriate state agency to provide residential services to dependent juveniles, when it is willing to accept legal, as opposed to simply physical, custody; or
(6) An adult individual or entity seeking custody, in the discretion of the Service, when it appears that there is no other likely alternative to long-term detention and family reunification does not appear to be a reasonable possibility.
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(f) Agreements between the Service and a custodian. (1) Certification of custodian. Before a juvenile is released from Service custody, the custodian must execute Form I-134, an Affidavit of Support, and an agreement to:
(i) Provide for the juvenile's physical, mental, and financial well-being;
(ii) Ensure the juvenile's presence at all future proceedings before the Service and the immigration court;
(iii) Notify the Service of any change of address within 5 days following a move;
(iv) Not transfer custody of the juvenile to another party without the prior written permission of the district director, unless the transferring custodian is the juvenile's parent or legal guardian;
(v) Notify the Service at least 5 days prior to the custodian's departure from the United States, whether the departure is voluntary or pursuant to a grant of voluntary departure or order of removal; and
(vi) Notify the Service of the initiation of any State court dependency proceedings involving the juvenile and the State dependency court of any immigration proceedings pending against the juvenile.
(2) Emergency transfer of custody. In an emergency, a custodian may transfer temporary physical custody of a juvenile prior to securing permission from the Service, but must notify the Service of the transfer as soon as is practicable, and in all cases within 72 hours. Examples of an ``emergency'' include the serious illness of the custodian or destruction of the home. In all cases where the custodian seeks written permission for a transfer, the district director shall promptly respond to the request.
(3) Termination of custody arrangements. The Service may terminate the custody arrangements and assume custody of any juvenile whose custodian fails to comply with the agreement required by paragraph (f)(1) of this section. However, custody arrangements will not be terminated for minor violations of the custodian's obligation to notify the Service of any change of address within 5 days following a move.
(g) Suitability assessment. The Service may require a positive suitability assessment prior to releasing a juvenile under paragraph (e) of this section. The Service will always require a suitability assessment prior to any release under paragraph (e)(6) of this section. A suitability assessment may include an investigation of the living conditions in which the juvenile is to be placed and the standard of care he or she would receive, verification of identify and employment of the individuals offering support, interviews of members of the household, and a home visit. The assessment will also take into consideration the wishes and concerns of the juvenile.
(h) Family reunification. (1) Efforts to reunite. Upon taking a juvenile into custody, the Service, or the licensed program in which the juvenile is placed, will promptly attempt to reunite the juvenile with his or her family to permit the release of the juvenile under paragraph (e) of this section. Such efforts at family reunification will continue as long as the juvenile is in Service custody and will be recorded by the Service or the licensed program in which the juvenile is placed.
(2) Simultaneous release. If an individual specified in paragraph (e) of this section cannot be located to accept custody of a juvenile, and the juvenile has identified a parent, legal guardian, or adult relative in Service detention, simultaneous release of the juvenile and the parent, legal guardian, or adult relative shall be evaluated on a discretionary case-by-case basis.
(3) Refusal of release. If a parent of a juvenile detained by the Service can be located, and is otherwise suitable to receive custody of the juvenile, and the juvenile indicates refusal to be released to the parent, the parent(s) shall be notified of the juvenile's refusal to be released to the parent(s), and shall be afforded an opportunity to present their views to the district director, chief patrol agent, or immigration judge before a custody determination is made.
(i) Transportation and transfer. (1) Separation from adults. Juveniles unaccompanied by adult relatives or legal guardians should not be transported in vehicles with detained adults except when being transported from the place of arrest or apprehension to a Service office or when separate transportation would be otherwise impractical, in which case juveniles shall be separated from adults. Service officers shall take all necessary precautions for the protection of juveniles during transportation with adults.
(2) Travel arrangements. When a juvenile is to be released from custody under paragraph (e) of this section, the Service will assist him or her in making transportation arrangements to the Service office nearest the location of the person or facility to whom the juvenile is to be released. In its discretion, the Service may provide transportation to such juveniles.
(3) Possessions. Whenever a juvenile is transferred from one placement to another, he or she shall be transferred with all possessions and legal papers; provided, however, that if the juvenile's possessions exceed the amount normally permitted by the carrier in use, the possessions shall be shipped to the juvenile in a timely manner.
(4) Notice. No juvenile who is presented by counsel should be transferred without advance notice to counsel, except in unusual and compelling circumstances such as where the safety of the juvenile or others is threatened, or the juvenile has been determined to be an escape-risk, or where counsel has waived notice. In these cases notice must be provided to counsel within 24 hours following transfer.
Dated: June 10, 1998.Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-19712 Filed 7-23-98; 8:45 am]
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