INS Reopens Comment Period on Detention Rule for Unaccompanied Minors

IMMIGRATION LAW & POLICY

Arrest and Detention

INS REOPENS COMMENT PERIOD ON DETENTION RULE FOR UNACCOMPANIED MINORS
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

The Immigration and Naturalization Service has reopened the comment period for its proposed rule establishing procedures for processing juveniles in INS custody (8 C.F.R. § 236.3). The proposed rule's comment period previously closed on Sept. 22, 1998; comments are now due by Mar. 15, 2002. In its notice regarding the new comment period, the INS states that it is particularly interested in receiving comments on the following:

Determining who speaks for the child regarding immigration matters.
Circumstances in which it might be necessary to house minors in secure facilities.
How to minimize the number of juveniles who are placed in INS custody.
Any new issues that have arisen since the previous comment period.

The proposed rule was issued in response to the comprehensive settlement in Flores v. Reno, a lawsuit concerning the rights of detained unaccompanied minors. The rule governed the processing, release, detention, and transport of unaccompanied minors, as well as the procedure whereby they are to be notified of their rights.

The rule would allow children to be released to family members other than their parents, or to non-family members whom the parent or guardian designate, as long as the children's safety and support are guaranteed.

The proposed rule provides that when children must be detained, they must be placed in a licensed facility within three days of being detained, provided such a facility exists in the area where they were apprehended and space is available, or, in all other cases, within five days. All facilities must meet the same standards that apply to other juvenile detention facilities used in other contexts. Also, except in emergencies, the INS must notify the minor's attorney before transferring the child.

The regulation provides that children must be kept in the least restrictive setting consistent with the INS's interest in ensuring that children are well cared for and that they appear for hearings and interviews. Such settings must be age-appropriate as well as suited to the children's special needs.

Minors must be segregated from adults and, if placed in juvenile detention facilities, they must be kept away from delinquents. If a minor is a flight risk or commits a crime, he or she may be placed in a secure facility.

Children may not be transported with adults unless it is unfeasible to separate adults and children. If such "mixed" transport is necessary, children and adults must be kept separate from each other within the vehicle in which they are transported.

Minors must be provided with INS Form I-770, Notice of Rights, informing them that they have a right to judicial review, free legal services, and bond redetermination hearings.

Unaccompanied children who are detained near U.S. borders and who reside in either Canada or Mexico must be advised of their right to make a phone call before they are given a voluntary departure form. All other unaccompanied minors must have communicated with either a parent, relative, friend, or attorney before being presented the form.

Parents who reside in the U.S. must be given notice and the right to respond if their child seeks a form of relief (e.g., release or voluntary departure) that may effectively terminate or otherwise affect some interest in the parent-child relationship.

67 Fed. Reg. 1,670 (Jan. 14, 2002) (notice of reopening of comment period on proposed rule);
64 Fed. Reg. 39,759 (Jul. 24, 1998) (proposed rule).