Sec. 226. Restrictive placements
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In this section: The term restrictive placement means— a staff-secure facility; a therapeutic staff-secure facility; and a placement in any setting other than a childcare facility, an influx facility, or licensed foster care placement. The term therapeutic childcare facility means a— congregate care facility for the purpose of rehabilitation or residential treatment; and an out-of-network facility or group home the staff of which has specialized training to care for children and adolescents with significant emotional, behavioral, social, or medical needs.
In the case of transfer of an unaccompanied noncitizen child to a restrictive placement, the Director shall provide an administrative placement review hearing conducted in accordance with sections 554 through 557 of title 5, United States Code. Except as provided in subparagraph (B), the Director shall provide written notice of intent to transfer an unaccompanied noncitizen child to a restrictive placement to the child concerned and the child’s legal counsel and child advocate.
The Director may transfer an unaccompanied noncitizen child to a restrictive placement without providing notice under subparagraph
(A)only if the Director has a reasonable belief, based on clearly articulable facts, that the child is a present, imminent danger to himself or herself or to others. A notice required by subparagraph
(A)shall include, in a language and format the unaccompanied noncitizen child understands, the following: The time, date, and location of the hearing under paragraph (1). A description of the individualized allegations relied on by the Director in support of such transfer, including all supporting evidence. An explanation that the unaccompanied noncitizen child— has a right to contest such transfer at such hearing; and may submit additional evidence, including witness testimony. A hearing under this subsection shall occur not less than— 72 hours after the unaccompanied noncitizen child concerned receives notice under paragraph (2); and 5 business days before the transfer to the restrictive placement is scheduled to occur. A hearing under this subsection shall be presided over by a neutral fact finder who— is not an employee of the Office of Refugee Resettlement; and has expertise in child welfare. At a hearing under this subsection, an unaccompanied noncitizen child shall have— the right to counsel; and the right and opportunity to confront, inspect, and rebut the evidence alleged to justify the transfer to a restrictive placement. With the assistance of counsel, an unaccompanied noncitizen child may waive his or her presence at a hearing under this subsection. The Director shall disclose to the unaccompanied noncitizen child concerned and the legal counsel and child advocate of the child, as applicable, the child's entire case file and all evidence supporting the determination to transfer the child to a restrictive placement— not later than 24 hours after such determination is made; and not less than 2 days before the date of the hearing under this subsection. An interpreter in the preferred language of the unaccompanied noncitizen child shall be made available for a hearing under this subsection. The Director shall have the burden of production and the burden of proof, by clear and convincing evidence, to establish that— the unaccompanied noncitizen child is a present danger to himself or herself or to others; a restrictive placement is consistent with the best interests of the child; there is no viable alternative to a restrictive placement to ensure the best interests of the child; and the child’s placement in a facility that is not a restrictive placement would not provide the services or resources necessary. The record of proceedings for a hearing under this subsection, and all related documentation— shall be maintained separately and apart from the unaccompanied noncitizen child's immigration file (commonly called the A-File ); and shall not form any part of, and shall not be relied upon, in any removal proceedings or any adjudication carried out by U.S. Citizenship and Immigration Services, including with respect to final decisions and discretionary factors. Not later than 2 business days before the date on which the unaccompanied noncitizen child concerned is scheduled to be transferred to a restrictive placement, the fact finder shall issue a written decision approving or denying such transfer, which shall be binding on the Office of Refugee Resettlement. In making a decision on such a transfer, the fact finder shall consider, and respond in writing to, the recommendation of the child advocate of the unaccompanied noncitizen child concerned. A written decision under this paragraph shall— set forth a detailed, specific, and individualized justification for the decision; and notify the unaccompanied noncitizen child of the child's— right to placement review hearings under subsection (e); right to seek review of the decision by the Ombudsperson under paragraph (6); and right to seek judicial review of the decision. The decision shall be made available in a language and in a format the unaccompanied noncitizen child understands. Not later than 72 hours after a decision in a placement review hearing is issued under this paragraph, the fact finder shall submit the decision to the Ombudsperson. On request by an unaccompanied noncitizen child or the legal counsel or child advocate of the child, the Ombudsperson shall carry out a review of a decision under paragraph (5), which shall be completed not later than 15 days after the date on which the request for review is made. In carrying out a review under this paragraph, the Ombudsperson may make a recommendation with respect to whether such decision should be modified. If the Ombudsperson determines that the decision under paragraph
(5)was erroneous, the Ombudsperson shall submit to the Director a recommendation for further action. If the Director declines to follow the recommendation of the Ombudsperson, the Director shall provide a detailed written justification to the child, the prospective sponsor, the legal counsel and the child advocate of the child, and the legal counsel of the prospective sponsor, as applicable. The Director may not delegate the requirement to issue such a written statement to any other individual. The Director may not place an unaccompanied noncitizen child in a staff-secure facility based solely on a risk of self-harm or behavior related to the child's trauma or mental health that could be addressed in a less restrictive setting with additional accommodations or rehabilitative care. The Director may never hold or place an unaccompanied noncitizen child in a secure facility. The Director may only hold or place an unaccompanied noncitizen child in a staff-secure facility if— there is clear and convincing evidence that the child poses a serious and imminent danger to others at the time of placement; upon holistic review of the child’s file, there is clear and convincing evidence that the assessed danger does not stem from the child’s trauma or mental health conditions; and even with additional accommodations and de-escalation measures, the child cannot be adequately cared for in a less restrictive setting or rehabilitative care. The Director may only hold an unaccompanied noncitizen child in a staff-secure facility under subparagraph
(A)during the period in which the Director can demonstrate that the conditions described in that subparagraph exist. The Director shall consider transfer of the child to a less restrictive placement as soon as these requirements are no longer met, even if the child has been in the placement for less than 30 days. The Director may not place any noncitizen child in— a U.S. Immigration and Customs Enforcement facility; or a facility operated by contract with U.S. Immigration and Customs Enforcement. The Director may place an unaccompanied noncitizen child in a therapeutic childcare secure facility only if— the unaccompanied noncitizen child has received a detailed, individualized evaluation by a licensed psychologist or psychiatrist who is experienced in the care of children; and the mental health professional conducting the evaluation under subparagraph
(A)has determined that— the child poses a substantial risk of harm to himself or herself or to others; such placement is in the best interests of the child; and even with additional accommodations or rehabilitative care, at the time of placement, the child cannot be adequately cared for in a less restrictive setting until the child receives services provided in such a placement. Before placing an unaccompanied noncitizen child in a therapeutic childcare facility, the Director shall first seek to place the child in a family-based therapeutic foster care placement. The procedures relating to transfers, notice, and placement review hearings under this title apply equally to unaccompanied noncitizen children placed in residential treatment centers and other therapeutic childcare facilities. An unaccompanied noncitizen child placed in a therapeutic childcare facility shall be evaluated by a licensed psychologist or psychiatrist who is experienced in the care of children. The mental health professional conducting the evaluation under clause
(i)for an unaccompanied noncitizen child shall— issue a written report that sets forth— the reasons for such placement; treatment goals; and a plan specific to the child for transition to a less restrictive setting; and make such report available to the unaccompanied noncitizen child and the child advocate of the child. The operator of a residential treatment center or any other therapeutic childcare facility for unaccompanied noncitizen children shall provide access to— legal services; and existing legal counsel and child advocates of such children, as applicable. Not less frequently than monthly, each unaccompanied noncitizen child in a restrictive placement shall be afforded a placement review hearing to determine whether continued placement in the restrictive placement is appropriate. A hearing under this subsection shall be conducted in accordance with the procedures and standards for placement review hearings under subsection (b). With respect to an unaccompanied noncitizen child who is in a therapeutic childcare facility not later than 5 days before a hearing under this subsection, a licensed psychologist or psychiatrist who is experienced in the care of children shall submit to the fact finder a detailed report on the mental health needs of the unaccompanied noncitizen child concerned. The fact finder shall issue a written decision continuing or terminating the restrictive placement of the unaccompanied noncitizen child concerned, which shall be binding on the Office of Refugee Resettlement. In making a decision on such placement, the fact finder shall consider— the best interest recommendation of the child advocate with respect to the unaccompanied noncitizen child concerned; and the findings contained in the report submitted under paragraph (3). A written decision under this paragraph shall— set forth a detailed, specific, and individualized justification for the decision; and notify the unaccompanied noncitizen child of— the right to further placement review hearings under this subsection; and the right to seek judicial review of the decision. The decision shall be made available in a language and in a format the unaccompanied noncitizen child understands. The record of proceedings for a hearing under this subsection, and all related documentation— shall be maintained separately and apart from the unaccompanied noncitizen child's immigration file (commonly called the A-File ); and shall not form any part of, and shall not be relied upon, in any removal proceedings or any adjudication carried out by U.S. Citizenship and Immigration Services, including with respect to final decisions and discretionary factors. An unaccompanied noncitizen child who is receiving services under section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. 794 ) shall not be placed in a facility that does not have access to such services. Before placing such an unaccompanied noncitizen child in a restrictive setting, the Director shall make a determination as to whether the needs of the child can be met in a more integrated setting. A determination under subparagraph
(A)shall include— an identification of the relevant trauma-informed, evidence-based services and accommodations that have been identified as potentially relevant; a description of any such service or accommodation that has been provided and the period of time in which the service or accommodation has been provided; if any such service or accommodation has been ineffective, an assessment of the reason; and an assessment of whether additional services or accommodations could be provided at the child’s current placement. If services are identified that have the potential to maintain such an unaccompanied noncitizen child in a less restrictive placement, the Director shall ensure that the child receives such services before the Director considers a transfer to a restrictive placement. For each such unaccompanied noncitizen child, at each placement review hearing under subsection (e), the Director shall explicitly identify services and accommodations that could be made available in a less restrictive placement. A recommendation by the Director against placing such an unaccompanied noncitizen child in a less restrictive placement shall be supported by specific documentation as to the reasons that, even with such accommodations, the child cannot be safely placed in a less restrictive placement. In the case of such an unaccompanied noncitizen child whom the Director intends to transfer to a restrictive placement, before the child’s placement review hearing, the decision to so transfer shall be reviewed by an independent third-party licensed psychologist or psychiatrist who is experienced in the care of children in accordance with a standardized process for evaluating the data and presented rationale, including a consideration of accommodations that could avoid the need for restrictive placement. In the case of such an unaccompanied noncitizen child in a restrictive placement whom the Director does not intend to transfer to a less restrictive placement, before the child’s next placement review hearing, the decision shall be reviewed by an independent third-party licensed psychologist or psychiatrist who is experienced in the care of children, in accordance with a standardized process for evaluating the data and presented rationale, including a consideration of accommodations that could avoid the need for restrictive placement. Not later than 45 days after conducting a review under this paragraph, the independent third-party mental health professional shall issue a written report describing the results of the review to the fact finder, the child concerned, the legal counsel and child advocate of such child, and the Director.
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Sec. 226
Restrictive placements
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