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This rule would establish the regulatory framework for a variety of activities currently conducted by the Office of Refugee Resettlement’s Unaccompanied Children (UC) Program. The rule would target activities currently mandated under the Flores Settlement Agreement (FSA), and it would further strengthen and codify additional protections and service provisions for unaccompanied children.

Statement of Need:

Historically, the UC Program has operated largely without authorizing regulations enacted under the Administrative Procedures Act or subject to notice-and-comment rulemaking. Instead, virtually all ORR policies and procedures are contained in an ORR Policy Guide, and more recently, official ORR Field Guidance.

The UC Program is currently subject to the FSA, a consent decree which was first agreed to on January 28, 1997, in the United States District Court for the Central District of California. The court continues to supervise the agreement, which, based on a subsequent amendment, cannot terminate until 45 days after the agency publishes rules implementing the agreement.

At this time, ORR seeks to promulgate a new UC Program Foundational Rule, which will govern ORR activities that are currently governed by the FSA along with the federal statutes concerning the UC program, and address additional areas not contemplated in 1997 when the FSA was instituted.

It is important to note that this rule will codify new and vital protections for all children in ORR care, most of which currently are only provided in ORR policies and procedures. Upon promulgation of the final UC Program Foundational Rule, ORR will seek to terminate the FSA. The long-term goal is for ORR to codify FSA requirements and provide programmatic enhancements that will result in better and more durable protections for all children in ORR care, including greater transparency of ORR policies.

Summary of the Legal Basis:

ORR has broad statutory authority concerning the care and custody of UC through the Homeland Security Act of 2002 (HSA), 6 U.S.C. 279, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), 8 U.S.C. 1232.

Alternatives:

The agency could choose to not issue regulations and continue to be governed by the FSA. However, as noted above, although the FSA provides important protections, it was never intended to permanently govern the program, and regulations are needed to codify enhancements that will result in better and more durable protections for all children in ORR care.

Anticipated Costs and Benefits:

ORR anticipates new costs associated with this rule particularly those associated with staffing increases (e.g., related to administrative hearings as part of due process protections) and will work to estimate the costs based on updated staffing requirements, costs associated with promulgation of the federal rule, and any other associated costs.

Risks:

No programmatic risks are anticipated.