New DHS proposed rule change regarding Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children
https://www.federalregister.gov/documents/2018/09/07/2018-19052/apprehension-processing-care-and-custody-of-alien-minors-and-unaccompanied-alien-children
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.
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.
https://www.federalregister.gov/documents/2018/09/07/2018-19052/apprehension-processing-care-and-custody-of-alien-minors-and-unaccompanied-alien-children#h-38