Unaccompanied Children Program Foundational Rule

The Unaccompanied Children Program Foundational Rule by the Administration for Children & Families was finalized April 30, 2024 with an effective date of July 1, 2024.

• A proposed rule was presented for public opinion & comments 10/4/23, with comments closed 12/4/23 Federal Register: Unaccompanied Children Program Foundational Rule
• The point of contact was/is Toby Biswas, Director of Policy, Unaccompanied Children Program, Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services, Washington, DC
• Mary Ruth, President of the American Bar Association submitted via the Federal Rulemaking Portal, within the time frame specified by ORR, their comments and concerns. https://downloads.regulations.gov/ACF-2023-0009-64143/attachment_1.pdf

The final rule document itemized and addressed the issues brought up by commentators including not resolving this:

13. Child and child’s attorney access to case (§§ 410.1303(g)(2) and 410.1303(g)(4)) The ABA is concerned that these proposed regulations improperly limit the access of the unaccompanied child, child’s attorney, and child advocate to the case file. Under the ABA UC Standards VIII.A.2., the child, their attorney, and their child advocate should have “unrestricted access to all non-classified records.” The comments to the ABA UC Standards explain that unrestricted access to all documents will help ensure that children are generally informed about their case. The ABA proposes that the child, child’s attorney, and child advocate be afforded unrestricted access to the case file and that advance notice or approval only be required before disclosing the case file information to anyone else for any purpose.

Response: ORR does not agree that its proposed policies under § 410.1303(g) in the NPRM (redesignated to § 410.1303(h) in the final rule) limit access to case files for unaccompanied children, children's families, or children's LSPs, attorneys of record, or child advocates. As stated above, regarding the definition of “case file,” ORR notes that, consistent with the Privacy Act, codified at 5 U.S.C. 552a, the UC Program's System of Records Notice (SORN), and ORR policies, unaccompanied children have access to, and are entitled to copies of, their own case file records.250 As such, both unaccompanied children and their parents or legal guardians may request their own files. ORR further notes that pursuant to the TVPRA, child advocates are “provided access to materials necessary to effectively advocate for the best interest of the child,” 251 and that under current ORR policies, child advocates have immediate access to children's case files without needing to submit a formal request to ORR. Further, under current ORR policies, unaccompanied children's attorneys may request their clients' case files, including on an expedited timeframe, as needed. ORR notes that its existing subregulatory guidance contains more detailed requirements related to the disclosure of records for these individuals, and the process for requesting access to case files or records. ORR believes that its established process for requesting access to case files safeguard and maintain the confidentiality of unaccompanied children's case file records consistent with ORR's responsibilities under the HSA and the TVPRA, as stated in the preamble discussion. Further, ORR believes that its proposed policies under § 410.1303(g) in the NPRM (redesignated to §§ 410.1303(h) in the final rule) recognize that unaccompanied children are vulnerable persons, and therefore, the privacy and confidentiality of their records is paramount, and carry out ORR's responsibility for maintaining and safeguarding unaccompanied children's records and information under the HSA and the TVPRA.

Hierarchy of agencies affecting, dealing with, all forms of immigration:

U.S. Department of Health & Human Services (HHS)

• The Administration for Children and Families (ACF)
  • Created April 15, 1991 by the merger of
    • Office of Human Development Services
  • Family Support Administration
  • Maternal and Child Health Block Grant Program
  • A division of the U.S. Department of Health & Human Services (HHS),
  • Promotes the economic and social well-being of families, children, youth, individuals and communities with funding, strategic partnerships, guidance, training and technical assistance.
  • Office of Refugee Resettlement (ORR)
    • § The mission of the Office of Refugee Resettlement (ORR) is to promote the health, well-being, and stability of refugees, unaccompanied children, and other eligible individuals and families, through culturally responsive, trauma-informed, and strengths-based services. Our vision is for all new arrivals to be welcomed with equitable, high-quality services and resources so they can maximize their potential.
  • o https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/fact -sheet
  • o Unaccompanied Children Bureau | The Administration for Children and Families (hhs.gov)

Department of Homeland Security (DHS)

• An Execuive Office (President) Cabinet agency
• The Department of Homeland Security was established in 2002, combining 22 different federal departments and agencies into a unified, integrated Cabinet agency.
  • Core Values |
• Guiding Principles
• Laws are passed by Congress and signed by the President. Regulations are issued to carry out the intent of enacted legislation. Human Trafficking Laws & Regulations | Homeland Security (dhs.gov)
• Operational and Support Components | Homeland Security (dhs.gov)
  • U.S. Citizenship and Immigration Services (USCIS) - the federal agency that oversees lawful immigration to the United States
• United States Immigration and Customs Enforcement (ICE) - ICE promotes homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration.
• o Citizenship & Immigration Services Ombudsman - An ombudsman analyzes, reports on, and raises complaints, concerns, and recommendations to the appropriate agency for resolution. This work is done with a commitment to neutrality, independence, and confidentiality. The ombudsman offices are separate and distinct from the agencies they oversee.
• o Office of the Immigration Detention Ombudsman
  –
  • § OIDO is an independent office within the Department of Homeland Security (DHS).
• § OIDO is NOT a part of U.S. Immigration and Customs Enforcement (ICE)
• § OIDO is NOT a part of U.S. Customs and Border Protection (CBP).
• § OIDO is an office within oversight entities and was established by Congress (Sec. 106 of the Consolidated Appropriations Act).
• Michelle Brané currently serves as the Immigration Detention Ombudsman at the Department of Homeland Security. She was appointed April 2024 by the Biden Administration. Previously she was Executive Director for DHS Family Reunification Task Force.

Fact Sheet: How DHS is Combating Child Exploitation and Abuse | Homeland Security

Countering Human Trafficking Year in Review | Homeland Security (dhs.gov)

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