Processing, Detention, and Release of Juveniles [63 FR 39759] [ FR 55-98]

DOCUMENT NUMBER: FR 55-98

FEDERAL REGISTER CITE: 63 FR 39759

DATE OF PUBLICATION: July 24, 1998

BILLING CODE 4410-10-M

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.

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.

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 § 236.3. The section is redesignated: "§ 236.3 Processing, detention, and release of juveniles."

The rule maintains the substance of former sections § 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 § 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 § 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 § 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 § 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 § 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 det ention. 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 rele asing 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 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.