Sec. 243. Individuals attaining 18 years of age
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If an individual in the custody of the Secretary is not released to a sponsor before the individual attains the age of 18 years, there shall be a presumption that the individual shall be released on an order of recognizance. The Secretary of Homeland Security shall bear the burden of proof, by clear and convincing evidence, in overcoming the presumption under paragraph
(1)and in demonstrating that such an individual is not eligible to be released on an order of recognizance. In the case of an individual aging out of the custody of the Secretary who is not eligible to be released on an order of recognizance, the individual shall be eligible to participate in noncustodial alternatives to detention programs provided by the Department of Health and Human Services, including placement with an individual, an organizational sponsor, or a supervised group home with supportive services to facilitate access to educational and occupational opportunities. The categories of placements available to an individual described in subparagraph
(A)shall be the following, in order of preference: The least restrictive family-based setting, including long-term foster care. An independent living program. A childcare facility that meets the particular needs of the individual. The Director shall ensure that an individual released on an order of recognizance under this subsection is provided with— continued access to counseling, case management, legal counsel, and other support services during the pendency of the individual’s immigration proceedings; and information on applying for special immigrant juvenile status under section 101(a)(27)(J) of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(27)(J) ), and resources to assist the individual with applying for such status. The Director shall develop a post-18 plan for each unaccompanied noncitizen child entering Office of Refugee Resettlement custody who— is over the age of 17 years and 6 months; or is not likely to be released to a sponsor before attaining 18 years of age. Each plan under paragraph
(1)shall include the following: An investigation into organizational sponsors and social support services. Coordination with the Secretary of Homeland Security to ensure the release of the unaccompanied noncitizen child on his or her own recognizance if release to an organizational or individual sponsor is not successful. With respect to an individual in the custody of the Secretary who attains 18 years of age before reunification, placement with a sponsor, or adjudication with respect to immigration status, the Director may extend Office of Refugee Resettlement custody for a period ending not later than the date on which the individual attains 21 years of age, if the individual— has not been reunified but has a family member available for reunification; has an identified sponsor; has been admitted to long-term foster care or a residential treatment center; or otherwise does not have reunification options but has not yet been adjudicated with respect to immigration status by a local court in the applicable jurisdiction; and solely at his or her discretion, without coercion and on the recommendation of his or her case manager, elects to remain in Office of Refugee Resettlement custody in the post-18 program until the date on which, as applicable— the screening process for reunification is completed and the individual is reunified with a family member or placed with a sponsor; or the individual is adjudicated with respect to immigration status in a local court in the applicable jurisdiction, receives relief from removal, and enters an applicable program for unaccompanied refugee minors. In considering a sponsorship application for an unaccompanied noncitizen child who may attain 18 years of age in the custody of the Secretary, the Director shall consider the potential for, and impact of, trauma and the risk to the safety and well-being of the child if the child were to be transferred to the custody of U.S. Immigration and Customs Enforcement on attaining such age. An individual who was in the custody of the Secretary as an unaccompanied noncitizen child shall not be apprehended, arrested, transferred, or taken into the custody of U.S. Immigration and Customs Enforcement, or removed from the United States, based solely on having attained 18 years of age. An individual who entered the United States as a child shall not lose the opportunity for due process and potential legal relief, or access to community-based housing, based solely on having attained the age of 18 years.
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Sec. 243
Individuals attaining 18 years of age
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