On October 4, the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) published the proposed Unaccompanied Children Program Foundational Rule, which if finalized, may ultimately replace HHS’s obligations under the Flores Settlement Agreement. The Foundational Rule was drafted to replace the prior administration’s Flores regulations and to strengthen and codify additional protections for unaccompanied children.
The previous administration’s regulatory framework raised grave concerns from child welfare, children’s rights, immigration policy, and legal advocacy organizations who roundly rejected the Flores regulations as published in 2019. These newly proposed regulations are different from the previous iteration and a welcome sign that the Biden administration seeks to codify significant aspects of the settlement to protect the rights of unaccompanied children. There are, however, a number of improvements and clarifications that should be made to ensure the proper treatment and protection of children who enter the U.S. without a parent or adult guardian. On December 4, the Acacia Center for Justice, in coalition with nearly 200 organizations, academics, attorneys, and medical practitioners dedicated to serving and defending the rights of children, individuals with disabilities, immigrants, and refugees, submitted a series of comprehensive comments to the government to ensure that the regulations, once finalized, are as strong as possible.
When enacted, these regulations will directly impact the youth served by two of Acacia’s programs: the Unaccompanied Children Program (UCP) and the Counsel for Children Initiative (CCI). Acacia’s UCP provides legal services to unaccompanied children who are in or have been released from ORR custody. UCP provides Know Your Rights workshops, legal screenings, direct representation, and referrals to pro bono attorneys. CCI represents unaccompanied children who have been released from ORR custody and are in removal proceedings in select jurisdictions.
Unaccompanied children are uniquely vulnerable and face significant challenges in the immigration system. The regulations will directly impact the ability of legal services providers to protect children’s rights, the conditions children face in custody, and children’s ability to access justice upon release. Many children appear before an immigration judge alone and with a limited understanding of the immigration court proceedings. Given the importance of the ORR Foundational Rule to the programs managed by Acacia, we participated in the drafting of comments to ensure that there are adequate protections in place for unaccompanied children in ORR custody and that the government is held accountable for treating children with dignity, maintaining family unity, respecting children’s legal rights, and protecting them from abuse.
Acacia concentrated on responding to the section of the regulation that describes ORR’s responsibility to provide legal services for unaccompanied children. Our coalition’s view supported a position that every child should have the legal support they need while facing the risk of deportation. The comment thus encouraged ORR to guarantee universal legal representation for unaccompanied children. Such a commitment would align with the federal government’s recognition that children in other types of formal proceedings require legal representation to ensure fair outcomes. For instance, just one week prior to publishing the proposed UCP Foundational Rule, HHS also proposed a new regulation to codify that state and tribal agencies may use federal funding to provide legal representation to children who are candidates for involvement with the foster care system. In so doing, HHS acknowledged the invaluable role of attorneys working to help children achieve safety and stability. Acacia insists that unaccompanied children deserve the same protections.
To reach universal representation for unaccompanied children, the capacity of legal service providers needs to increase. This requires expanding beyond the traditional non-profit organizations that have handled representation under the UCP program. In its comments on the UCP Foundational Rule, Acacia encouraged ORR to ensure that attorneys who handle unaccompanied children’s cases are sufficiently compensated at reasonable, competitive rates, as this would allow for the recruitment and retention of small firms, solo practitioners and small non-profits to the network.
Acacia also advocated for key safeguards for unaccompanied children, such as ensuring that children with disabilities are not placed in the most restrictive placement setting simply because they need specialized care. Acacia further encouraged the government to establish that all communication with unaccompanied children is conveyed to the children in the language they are most comfortable communicating in.
In addition, given the possible termination of Flores, Acacia called on ORR to create the Unaccompanied Children Ombuds Office, which will establish strong, critical oversight over ORR and improve data tracking. For more than two decades, Flores monitors and counsel have played a vital role in bringing violations of the Flores Settlement Agreement to light. The creation of the Unaccompanied Children Ombuds Office is a necessary and important step in protecting the rights of unaccompanied children in ORR care, including ensuring that standards of care are regularly monitored and promptly addressed when violated and ensuring treatment of children consistent with child welfare principles. Given the potential loss of Flores monitors, Acacia emphasized that HHS must commit to further transparency via the regular publication and permanently accessible archiving of administrative data regarding unaccompanied children through both the Ombuds Office and ORR itself. Additionally, the comment provided recommendations to enhance protections for unaccompanied children’s personal information, such as by requiring that organizations working with these children adopt proactive policies and practices to ensure the privacy, security, and confidentiality of program data, including case file information.
Acacia applauds the current administration’s significant improvement from what the previous administration proposed. However, there are gaps in the proposed rule that should be addressed, and we encourage ORR to adopt the coalition’s recommendations for strengthening and improving the proposed regulations. This explainer co-drafted by NIJC, Acacia, National Center for Youth Law, and the Young Center for Immigrant Children’s Rights, details all 11 comments submitted by the coalition. A total of 73,927 comments were submitted, which HHS must review before finalizing the regulations.