The Proposed Foundational Rule Will Provide Regulatory Structure for HHS’ Office of Refugee Resettlement’s Unaccompanied Children Program and Codify Obligations of the Flores Settlement Agreement

Today, the U.S. Department of Health and Human Services through the Administration for Children and Families’ (ACF) Office of Refugee Resettlement announced the publication of a proposed “Foundational” rule for ORR’s Unaccompanied Children (UC) Program.

This proposed rule would codify a framework for the care and custody of unaccompanied children consistent with ORR’s statutory authorities and responsibilities, as well as with requirements established in the 1997 Flores Settlement Agreement (FSA). It would establish a comprehensive framework setting clear standards for the care and treatment of unaccompanied children in ORR’s custody. 

“HHS is committed to the well-being and safety of unaccompanied children in our care,” said HHS Secretary Xavier Becerra. “This proposed rule takes significant steps to ensure that these vulnerable children are protected and supported as they transition into new communities.” 

Key elements of the Proposed UC Program Foundational Rule include:

• Mandated Provisions: The proposed rule will incorporate provisions applicable to ORR in the Flores Settlement Agreement, such as standards for placement and release of unaccompanied children, emergency and influx operations, transportation, and monitoring requirements.

• Enhanced Service Provisions: The proposed rule will formalize and expand legal services, child advocate access, post-release services, and language access, ensuring that unaccompanied children have access to services necessary for child well-being and compliance with immigration proceedings. Expansions will continue to be dependent on Congressional appropriations.

• Due Process Protections: The proposed rule will put in regulations procedural protections, including providing for custodial redetermination hearings to replace bond hearings, the formal establishment of the Placement Review Panel (PRP), and independent oversight mechanisms.

• Independent Monitoring: The proposed rule will create an Office of the Ombuds to receive, investigate, and address concerns about government actions, establishing a regulatory framework for enhanced HHS oversight of unaccompanied children program operations. This is also responsive to congressional recommendations.

The proposed rule follows extensive consultations with stakeholders, including Members of Congress and their offices, legal and social service providers, and advocacy organizations. The proposed rule will be open for a 60-day public comment period, providing an opportunity for all interested parties to provide input and feedback. While the rule sets standards for enhanced services, ORR will continue to rely on Congressional appropriations to implement service expansions, including for post-release services and legal services.

“ORR is legally required to provide for the care of all unaccompanied children referred to it until they are appropriately and safely released to a vetted sponsor and we take that directive very seriously,” said ORR Director Robin Dunn Marcos. “The proposed rule we are announcing today codifies and expands on important steps we have taken to protect the children we serve, particularly in terms of high-quality care, due process protections, language access, post-release services, and oversight.”