Attachment A - Responses to Public Comment (0970-0565)

Legal and Advocacy Services for

Unaccompanied Children

OMB Information Collection Request

0970 – 0565

Attachment A - Summary of Public Comments and ORR Responses

October 2024

Type of Request: Revision

Submitted By:

Office of Refugee Resettlement

Administration for Children and Families

U.S. Department of Health and Human Services

ORR expresses its appreciation to the public for the thoughtful and detailed comments in response to this information collection request. In addition to comments specific to the information collection, a few of the comments received relate to underlying policy and are thus outside the scope of the purpose for which comments on the information collection were solicited. As specified in in 5 C.F.R. s. 1320.8(d), these purposes are: whether the form and the information it collects are necessary for what the agency is trying to accomplish through the form and whether the information collected will have practical utility; to evaluate the paperwork burden of filling out the form and whether the agency’s estimate of the burden was correct; the usefulness of the information being collected on the form; and minimizing the form completion burden. Although some of the comments summarized below are outside of the scope for this specific information collection, ORR extends its thanks to the public and will consider these comments in our future work.

Request for Specific Consent to Juvenile Court Jurisdiction (Form L-1)

1. One commenter, a non-profit law firm and legal service provider, recommended that ORR revise the introductory text of the form to replace “This form is required for attorneys of record and legal service providers…” with “This form is required for attorneys of record or others acting on behalf of the unaccompanied child…” to align with language used in ORR’s regulatory text at 45 C.F.R § 410.1209(c).

ORR Response: ORR concurs with the commenter’s recommendation and updated the form’s introductory text accordingly.

2. One commenter, a non-profit law firm and legal service provider, noted that Specific Consent is only relevant to scheduled State or Juvenile court hearings, never Immigration Court hearings, and recommended that the relevant language at Section A: Child Information be amended as follows: “Scheduled State or Immigration Juvenile Court Hearing Relevant to Request:”

ORR Response: Periodically attorneys or persons acting on behalf of the child offer upcoming immigration court hearings as their justification when requesting expedited processing of their specific consent request. Therefore, this form is inclusive of immigration court hearings as a justification for expediting a consent request and therefore no updates were made.

2. One commenter, a non-profit law firm and legal service provider, noted a typo in Section C: Request for Specific Consent and Signature and recommended that the language be corrected as follows: “Check is if applicable."

ORR Response: ORR corrected the typo.

2. One commenter, a non-profit law firm and legal service provider, noted that different states use different words to describe an individual or entity granted legal custody of a child. The commented recommended against using the word “guardian” in Section C, and suggested the following revision: “Name of Intended Guardian Individual or Entity to be Granted Custody.”

ORR Response: ORR concurs with this recommendation and revised the form accordingly.

2. One commenter, a non-profit law firm and legal service provider, noted that requests for Specific Consent are time sensitive. The commenter further stated that while the language at in Section D: Next Steps regarding a 60-day timeline is in keeping with the new Foundational Rule at 45 C.F.R. § 410.1209(f), the 60-day timeline will leave many children with an urgent legal need unprotected.

ORR Response: This comment relates to underlying governing regulation and not the information collection itself. Nevertheless, ORR thanks the commenter for their recommendation. As ORR noted in response to similar comments received as part of the rulemaking process for the UC Program Foundational Rule, ORR believes that 60 days is a reasonable timeframe for it to make determinations on specific consent requests. The 60-day timeframe allows time for thorough review, to make any requests for additional information if needed, and for the unaccompanied child, the child's attorney, or others acting on the child's behalf, to submit such additional information. Additionally, ORR notes that 60 days is the maximum amount of time that ORR would take to review a specific consent request, and ORR may make a determination in less than 60 days. Finally, ORR notes that the requirements under § 410.1209(f) also include a provision that states “when possible, ORR shall expedite urgent requests.” This language was also included in the proposed revisions for Section D of the form.

Specific Consent Request Case Summary (Form L-2)

1. One commenter, a non-profit law firm and legal service provider, noted grammatical errors in Section B: Child Case Information. The commented recommended revising the language for questions 1 and 2 as follows: “If the child was were released from ORR custody into the new custody situation, would there be any risk to…”

ORR Response: ORR corrected the grammatical error.

2. One commenter, a non-profit law firm and legal service provider, recommended removing question 3 (regarding escape risk) because it is inconsistent with the Unaccompanied Children (UC) Program Foundational Rule. The commenter noted that 45 C.F.R. § 410.1209(e) directs ORR to consider only whether “ORR custody is required to: 1) ensure the child’s safety; or 2) ensure the safety of the community.” 45 C.F.R. § 410.1209(e). The commenter further noted that in the Comments to the Foundational Rule, ORR indicated: “[a]s ORR does not consider runaway risk for purposes of release, it does not intend to do so here for purposes of adjudicating specific consent requests.” See Discussion of Elements of the Proposed Rule, 88 Fed. Reg. 68908, 68915 (Oct. 4, 2023).

ORR Response: As the commenters noted, 45 C.F.R. § 410.1209(e) directs ORR to “consider whether ORR custody is required to 1) ensure the child’s safety or 2) ensure the safety of the community.” It does not restrict ORR from considering other factors. However, the commenter is correct that in the discussion of elements, public comments, responses, and final rule actions for the UC Program Foundational Rule ORR stated that is does not intend to consider runaway risk for the purpose of adjudicating specific consent. Therefore, ORR concurs with the commenter’s recommendation and removed question 3 from the form.

3. One commenter, a non-profit law firm and legal service provider, expressed concern that the form places undue focus on a child’s “behavior,” “functioning,” and “psychosocial history” in a way that could encourage FFS to inappropriately withhold Specific Consent as a way to punish a child for behaviors that may be related to trauma or detention fatigue. The commenter recommended that the form be revised to only collect information that is relevant to ensuring the child’s safety or the safety of the community as directed in the regulatory text at 45 C.F.R. § 410.1209(e) (questions 1 and 2) and remove questions 4-6. The commenter also recommended editing the text at Section C: FFS Recommendation, as follows:

“Provide a recommendation whether to grant or deny specific consent to the jurisdiction of the state court based on the summary of the child’s functioning, behavior and psychosocial history and the following factors:

• If release of the child presents a risk to self [add] or the community; or there be any flight risk.

• If the child has a viable sponsor who is fully vetted, and the reunification is in the best interests of the child.”

The commenter further recommended that if ORR elects to retain these questions, it should also require FFS to include any facts that tend to indicate that release from ORR custody might mitigate any of the “behavior.”

ORR Response:

Removing Questions 4-6 – The information provided in these questions can further support a decision to grant specific consent and/or provide insight necessary for an analysis of whether the child presents a danger to self or the community. Therefore, ORR retained the questions.

Additionally, ORR notes that Question 6, which specifically inquires about a child’s functioning, behavior, and psychosocial history, is stated from a neutral perspective.

Furthermore, ORR does not withhold specific consent to punish children for their behavior. 45 CFR § 410.1304(a)(1) prohibits care providers from threatening children with unfavorable consequences related to legal matters (which would include specific consent requests). This policy also extends to ORR staff, including FFS. Moreover, FFS are child welfare professionals who understand that certain behaviors may result from trauma or detention fatigue, have the expertise to distinguish those behaviors from behaviors that would present a risk to the child’s safety or the safety of the community, and have the ability to make an informed recommendation on whether to grant specific consent. Finally, ORR clarifies that the final decision on whether to grant specific consent rests with the Deputy Assistant Secretary for Humanitarian Services/ORR Director.

Modifying Text in Section C – Since ORR removed question 3 (as noted in response to comment 2 above), it also removed the phrase “; or there be any flight risk” from Section C of the form, as recommended by the commenter. Since ORR is not removing question 6, it retained the phrase “summary of the child’s functioning, behavior and psychosocial history and the.”

Case Status Summary for Executive Office for Immigration Review (Form L-9)

1. One commenter, a non-profit law firm and legal service provider, noted that principles of due process and Executive Office for Immigration Review (“EOIR”) policy typically limit filings to those submitted by parties (the Respondent and the Department of Homeland Security), or the Respondent’s practitioner of record. The commenter further noted that children are often unrepresented and therefore unable to meaningfully object to irrelevant or prejudicial information submitted by third parties, thus, any submissions by a non-party should be extremely limited in scope to protect children’s due process rights. The commenter recommended that if ORR finalizes the form for use, that it promulgate policy to disallow the annotation of the form with additional information, or the attachment of additional documents and note on the form that it is not to be used for evidentiary purposes.

ORR Response: ORR thanks the commenter for sharing their concerns and recommendations. ORR notes that the form is already extremely limited in scope; ORR only provides the information necessary to ensure that EOIR has accurate information on the child’s case status in advance of the child’s immigration hearing. ORR added a note on the form stating that it is not to be used for evidentiary purposes and will take the commenter’s other recommendations into consideration for future policymaking.

2. One commenter, a non-profit law firm and legal service provider, recommended that ORR include brief filing instructions on the form itself to ensure that relevant stakeholders are aware of the purpose and proper use of the form. The commented specifically recommended the following introductory text:

“Instructions: This form should be completed by the Federal Field Specialist (FFS) or care provider and sent to the Executive Office for Immigration Review (“EOIR”) in advance of a child’s immigration court hearing. A copy of the form shall also be shared with the child’s legal service provider or attorney of record and child advocate (if applicable). The submission of this form shall not be considered evidence in the child’s removal proceedings, and is being submitted for informational purposes related to the child’s custody status only.”

ORR Response: ORR agrees that it would be helpful to include introductory text in the form that includes its purpose and brief filing instructions and ORR has updated the form accordingly. ORR also included language stating that the form is not to be used for evidentiary purposes. However, ORR notes that the decision on what documentation may be considered evidence it ultimately at the discretion of the immigration judge regardless of instructions included in the form.

3. One commenter, a non-profit law firm and legal service provider, commended ORR for noting, in the introductory text to the Proposed Information Collection, that the form (if implemented) should be provided to the child’s legal service provider (LSP) in advance of or in conjunction with any submission. The commenter recommended that ORR promulgate policy requiring that the FFS and local LSP come to a written agreement determining the method by which the form should be shared, and outlining the steps an LSP can take to request a copy on an expedited basis if one is not provided.

ORR Response: This comment relates to underlying policy and not the information collection itself. ORR thanks the commenter for their recommendation and will take it into consideration for future policymaking.

ORR also clarifies that the introductory text to the proposed information collection stated that a copy of the form is shared with the child’s LSP and child advocate (if applicable) but did not specifically state that it is shared in advance of or in conjunction with the submission. Typically, the form is shared in conjunction or shortly after submission. ORR is not able to provide a copy of the form in advance of submission nor is not feasible to require that the FFS and local LSP come to a written agreement determining the method by which the form should be share. Such processes would be inefficient and hinder ORR from providing information to EOIR in a timely manner. However, ORR will consider requiring that the form be shared in conjunction with submission for future policymaking.

Recommended States List (Form L-11)

1. One commenter, a non-profit legal service provider, noted because ORR sometimes opens/closes long-term foster care (LTFC) programs with little notice, the first, second, third, fourth, and fifth preference dropdown menu options must be amendable to reflect current LTFC locations without further Office of Management and Budget (OMB) approval to avoid any undue delay or confusion that may compromise a child’s placement in LTFC.

ORR Response: In its submission to OMB, ORR will request it be allowed to update the dropdown to align with current care provider locations without seeking additional approval from OMB.

2. One commenter, a non-profit legal services provider, urged ORR to rescind the Recommended States List (RSL) process and proposed form in their entirety noting concerns that the process requires the unauthorized practice of law, is inefficient, and forms an unnecessary attorney-client relationship (see below). The commenter recommended that ORR adopt a process similar to that which existed prior to enactment of RSL process that would allow legal service providers associated with receiving LTFC placements to employ their own expertise in determining whether a child was eligible for relief in the location in which they are licensed and ethically competent to practice. The commenter further recommended that should ORR revert to the guidance in effect before the RSL process that ORR remove the disclosure of legal relief required in the prior process, as it is unnecessary and a potential breach of confidentiality. The commenter explained that a more efficient process would have an attorney who practices in the state and circuit in question and has more familiarity with that state’s Special Immigrant Juvenile Status (SIJS) laws and that circuit’s asylum law assess the child’s case for viability in their jurisdiction and be competently able to advise the child as to their legal options.

ORR Response: This comment relates to underlying policy and not the information collection itself. Nevertheless, ORR thanks the commenter for sharing their concern and recommendations. Please see below (2a-c) for responses to each specific concern.

1. Unauthorized Practice of Law. The commenter asserted that the proposed form requires attorneys to engage in unauthorized practice of law. The commenter explained that the RSL process and proposed form is ethically problematic and unfeasible because it requires legal service providers to assess whether a child will be eligible for relief in another state and discuss the same with a child. The commenter further explained that each state promulgates rules for the practice of law in their state, and, generally, an attorney must have permission to practice law in any given state, usually achieved by holding a license to practice law in that state. The commenter stated that advising an individual on how the laws of another state would apply to their case creates a system wherein attorneys are pushed to engage in unauthorized practice of law and exposes attorneys to potential discipline.

ORR Response: ORR thanks the commenter for sharing their concern, however, ORR disagrees that the RSL process and proposed form requires attorneys to engage in unauthorized practice of law. The RSL process does not require legal service providers to make determination of eligibility in each state. Rather, the RSL process asks legal service providers to make a recommendation based on the child’s potential for immigration relief, type of immigration relief, and status of court hearings or relief petitions (see UC Policy Guide Section 1.4.4 Transfer to Long-Term Foster Care). The RSL is one of several placement factors taken into consideration when making an LTFC placement determination (see UC Policy Guide Section 1.2.6 Long-Term Foster Care).

2. Inefficient Process. The commenter asserted that the RSL process and proposed form is inefficient because it requires the referring attorney to understand the law of every jurisdiction instead of requiring the receiving attorney to know only local law. The commenter explained that the attorney’s ethical duty of competency would almost certainly dictate a best practice of consulting a licensed attorney from other states, since not only do state laws change constantly, but the circumstances in which they are applied and enforced can also differ between localities. The commenter further explained that would entail a time-consuming process of numerous email exchanges and phone calls with out-of-state legal service providers and follow-up meetings with children that would be unlikely to be completed within the deadlines outlined by ORR. The commenter also noted that the time that must be invested to complete the RSL process and form requires a shift in the limited resources of most legal service organizations and could result in fewer resources available to prospective and existing clients.

ORR Response: As noted in ORR’s response above under 2a, RSL process does not require legal service providers to make determination of eligibility in each state. Thus, ORR does not expect LSPs to understand the law of every jurisdiction nor does ORR expect LSPs to engage in emails and phone calls with out-of-state LSPs to the extent that the process becomes inefficient.

3. Unnecessary Attorney-Client Relationship. The commenter asserted that the RSL process and proposed form entail a risk of malpractice and cause confusion for children because it requires attorneys to provide legal advice and form an attorney-client relationship. The commenter explained that the proposed form must be completed for both clients and non-clients and that to complete the form correctly the child must be advised about the application of law to the specific facts of that child’s case. The commenter further explained that the attorney must consult a child about potential legal relief based on the child’s circumstances, likely coordinating with counsel in other jurisdictions, and finally completing and filing a form with a government agency advocating for this minor’s preferences. The commenter concluded that best practices dictate finalizing a retainer to establish the rules and expectations of the attorney-client relationship.

ORR Response: This comment relates to underlying policy and not the information collection itself. Nevertheless, ORR thanks the commenter for sharing their concern and recommendations. ORR disagrees that the RSL process and proposed form would create an attorney-client relationship between the LSP and the child. As noted above, the RSL process asks LSPs to make a recommendation based on the child’s potential for immigration relief, type of immigration relief, and status of court hearings or relief petitions and is just one of several placement factors taken into consideration when making a LTFC placement determination. ORR is not requiring LSPs to make determination of eligibility in each state nor is ORR requiring LSPs to complete a Notice of Attorney Representation (which establishes an attorney-client relationship for ORR) as part of the RSL process. In addition, ORR relies on LSPs to practice what is in the bounds of their ethics. ORR does not expect LSPs to make recommendations that they uncomfortable providing to ORR.

3. One commenter, a child advocacy organization, raised concerns that LSPs may not have the information and expertise they need to advise children on LTFC placement options located across the country. The commenter provided examples of how the ability of a child to obtain a predicate order for SIJS varies according to each state’s laws on jurisdiction and court practice, and sometimes varies between localities and judges. The commenter stated that given such variations, some LSPs may not have the knowledge and experience with the laws and intricacies of legal practice in every jurisdiction to assess a child’s potential for immigration relief in every state where ORR has LTFC placements. The commenter further stated that since attorneys are ethically required to provide competent representation, which requires having the legal knowledge “reasonably necessary” for such representation, a child’s LSP may conclude that they are foreclosed by their ethical duties to the child from making the recommendations. The commenter recommended, given these concerns, that ORR make completion of the form optional and draw no inference when an LSP does not submit a form.

ORR Response: This comment relates to underlying policy and not the information collection itself. Nevertheless, ORR thanks the commenter for sharing their concern and directs them to the responses provided above under 2a-c. ORR will consider making the form optional.

4. One commenter, a child advocacy organization, expressed concern that the proposed form and RSL process does not ensure that children have the information they need to actively participate in decisions regarding their LTFC placement. The commenter stated that ORR does not provide children or their LSPs with critical information about specific LTFC placements or their availability and, in their experience, children often have little to no information about their LTFC options prior to meeting with their LSP. The commenter further stated that, as a result, children cannot meaningfully engage with their LSPs during those meetings. The commenter recommended that ORR inform children of their eligibility for LTFC placement and provide the child and their LSP with a list of available LTFC programs in advance of the LSP’s meeting with the child to discuss the RSL form.

ORR Response: This comment relates to underlying policy and not the information collection itself. ORR disagrees that the RSL process does not provide child with the information needed to actively participate in decisions regarding their LTFC placement. Care providers are required to consider the child’s preference, cultural, and linguistic needs when making placement recommendations (see UC Policy Guide Section 1.2.6 Long-Term Foster Care). Nevertheless, ORR will take the commenter’s concerns into consideration for future policymaking.

5. One commenter, a child advocacy organization, expressed concerns that the requirement to make state recommendations based solely on the child’s potential for immigration relief fails to account for cases where the child’s preferences for states for LTFC placement differ from the states where the child is best able to access legal relief. The commenter explained that some children may prefer placements in states where they have better access to community, family, healthcare, education, or other services, even if it would be more difficult for the child to access legal relief in these states. The commenter further explained that in those cases, the child’s LSP is ethically required to abide by the child’s decisions (if the LSP provides them with the information reasonably necessary for the child to make an informed decision) and requiring an attorney to recommend states that are contrary to the child’s wishes would run afoul of the attorney’s ethical duties to the child. The commenter recommended that, given these concern, ORR not require LSPs to complete the form.

ORR Response: This comment relates to underlying policy and not the information collection itself. As noted in responses above, the list of recommended states provided by the LSP is just one of several placement factors taken into consideration when making a LTFC placement determination (see UC Policy Guide Section 1.2.6 Long-Term Foster Care). In addition, care providers are required to consider the child’s preference, cultural, and linguistic needs when making placement recommendations (see UC Policy Guide Section 1.2.6 Long-Term Foster Care). ORR will consider making the form optional.

6. One commenter, a child advocacy organization, stated that while federal regulations require child advocates to advocate for their unaccompanied child client’s best interest with respect to placement, in the form of a best interest determination (BID), ORR does not ensure that BIDs are requested and considered in the LTFC placement process. The commenter further stated that ORR policy regarding long term placements explicitly contemplates child advocate involvement only where there are no LTFC placements available in the states that LSPs recommend on the RSL form, at which point the child is required to be referred for a child advocate. The commenter explained that making a referral to a child advocate at that late-stage risks further delaying the placement process, as a child advocate, once appointed, would need time to review the child’s case and placement options and meet with the child, to be able to provide a BID. The commenter recommended that ORR ensure that care providers promptly request and consider a BID for all placement decisions, including LTFC placement decisions, and that ORR provide the child advocate with information on available LTFC placements to help inform their BID.

ORR Response: This comment relates to underlying policy and not the information collection itself. Nevertheless, ORR thanks the commenter for sharing their concern and recommendations. ORR’s child advocate contract does not support the child advocate staffing level that would be needed to fulfil a requirement to provide a BID for all placement decisions. However, ORR will consider the commenter’s recommendations for future policymaking.

Child Advocate Referral (Form L-12A)

1. One commenter, a child advocacy organization, recommended that ORR add fields to solicit sponsor-related information. The commenter explained that the additional information would help child advocates in understanding where a child is in the sponsorship process and identifying children facing sponsorship issues that would benefit from child advocate services. The commenter noted that sponsor-related information would also be helpful in screening out cases that may have a less urgent need for child advocate services due to a high likelihood of reunification. Specifically, the commenter recommended adding the following fields:

   • Does the child have a sponsor?

   • If yes, what category has ORR assigned to this sponsor (Category 1, 2, 3, or 4)?

   • How many sponsors has the child had?

ORR Response: ORR concurs that the sponsor-related fields recommended by the commenter would help child advocates better understand sponsorship issue the child may be facing and screen out cases that may have a less urgent need. ORR added the fields to the form. However, ORR adjusted the available sponsor category options for the second questions to align with the options it assigns in cases where a child has a sponsor – 1, 2A, 2B, and 3 (see UC Policy Guide Section 2.2.1 Identification of Qualified Sponsors).

2. One commenter, a child advocacy organization, recommended that ORR add fields for information on the child’s entry into the United States. The commenter explained that the additional information would help child advocates to identify children who experienced prolonged detention in DHS custody and provide information important to assisting children who were transferred to ORR custody without their personal property (e.g., birth certificates, passports, and photographs), as well as children who witnessed or experienced abuse or neglect in DHS custody or were separated from a family member. The commenter further explained that collecting this information in the form would help ensure that child advocates have this information immediately upon referral so that they can best assess the child’s needs and prepare for advocacy upon appointment. Specifically, the commenter recommended adding the following fields:

   • U.S. Port of Entry where child entered

   • Date of apprehension by DHS

ORR Response: ORR concurs that the fields recommended by the commenter would assist child advocates in helping children who experienced prolonged detention in DHS custody, had their belonging retained by DHS, or experienced or witnessed abuse or neglect in DHS custody. ORR added the recommended fields to the form.

3. One commenter, a child advocacy organization, recommended that ORR add a dropdown menu to the “Gender” field to ensure that referrers are providing accurate information on the child’s gender identity, as well as adding a field for the referrer to indicate whether the child identifies as LGBTQI+. The commenter explained that the information will help child advocates to identify LGBTQI+ youth and youth who identify as non-binary and advocate with ORR and care providers to ensure that they are not mistreated while in custody and instead receive care that is affirming and supportive of their identities, as required by ORR policy. Specifically, the commenter recommended:

   • Adding a field for Child identifies as LGBTQI+?

   • Adding a dropdown menu to the “Gender” field that contains the following options:

     • Cisgender male: A person who was assigned male at birth and whose gender identity is male.

     • Cisgender female: A person who was assigned female at birth and whose gender identity is female.

     • Trans male: A person who was assigned female at birth but whose gender identity is male.

     • Trans female: A person who was assigned male at birth but whose gender identity is female.

     • Non-binary person: A person who does not identify exclusively as a man or a woman. Non-binary people may identify as being both a man and a woman, somewhere in between, or as falling completely outside these categories. While many also identify as transgender, not all non-binary people do.

     • Gender-nonconforming person: A person who behaves in a way that does not conform to the traditional expectations of their gender, or whose gender expression does not fit neatly into a category.

ORR Response: ORR thanks the commenter for their recommendation and agrees that it is important that children who identify as LGBTQI+ received care that is affirming and supportive of their identities. That is why ORR has long-standing policies in place that require care providers to ensure that LGBTQI+ children are treated with dignity and respect; receive recognition of their sexual orientation and/or gender identity; are not discriminated against or harassed based on actual or perceived sexual orientation or gender identity; and are cared for in an inclusive and respectful environment (see UC Policy Guide Section 3.5 Guiding Principles for the Care of LGBTQI+ Unaccompanied Children and subsections 3.5.1 through 3.5.6).

• Additional Field – ORR concurs with the recommendation and added Child identifies as LGBTQI+ as a reason for referral under Section C of the form.

• Dropdown Options – In accordance with the Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals (EO 14075) and HHS' Sexual Orientation and Gender Identity (SOGI) Data Action Plan, ORR is in the process of developing and implementing its own SOGI Data Action Plan to improve its collection of SOGI data and ensure SOGI data is collected in a consistent manner across all UC Bureau (UCB) forms. ORR plans to update the "Gender” field in all UCB forms to include dropdown options for male, female, and nonbinary and has made that change in the referral form. While ORR appreciates the commenter’s thoughtful recommendation for “Gender” field dropdown options, it is not prepared to make additional changes to the “Gender” field in its forms without further analysis.

4. One commenter, a child advocacy organization, recommended the addition of a field that will allow referrers to provide any nickname(s) or preferred name(s) other than the child’s legal name. The commenter explained that by knowing in advance a child’s preferred name, a child advocate can address the child by their preferred name, show that they honor how the child wishes to be addressed and the child’s identity, and thereby build trust and rapport with the child. The commenter noted that, in their experience, many children in ORR custody use a different name than their legal name to refer to themselves; this may include nicknames, a preference to be called by their middle or last name, or cases where a transgender, non-binary, and gender-nonconforming child view their legal name as a “dead name” and prefer using a new name that reflects their gender identity. Specifically, the commenter recommended adding the following field:

   • AKA (any nicknames or preferred names)

ORR Response: ORR appreciates the importance of using the child’s preferred name when addressing them and generally concurs with the commenter’s recommendation. However, the “AKA” field is present in many UC Bureau forms and its purpose is to capture alternate legal names for the child. For example, a child’s last names may be transposed on different legal documents or the child’s parent may indicate that the child has a middle name, but it does not appear in the child’s legal documents. To ensure the field is consistently used for the same purpose across all forms, ORR added a separate field for “Nicknames and Preferred Names” in addition to adding an “Also Known As (AKA)” field.

5. One commenter, a child advocacy organization, recommended that ORR rephrase the Admission Date field and add a field to capture the child’s date of entry into ORR custody. The commenter explained that referrers interpret what information is being requesting in the Admission Date field differently, with some inputting the date the child enters a specific facility and others inputting the date the child enters ORR custody. The commenter noted that both dates are helpful during the referral process and specifically recommended the following:

   • Replacing the Admission Date field with Provider Admission Date

   • Adding a field for Date of Entry into ORR Custody

ORR Response: ORR concurs with the commenter’s recommendation to provide a clearer field label and agrees that including both dates in the referral will assist child advocates. ORR revised the Admission Date field and added the new field, as recommended.

6. One commenter, a child advocacy organization, recommended adding the following checkboxes in Section C: Reason for Referral:

   • Child is reported to be involved with law enforcement on site

The commenter explained that this checkbox option should be specifically enumerated because the UC Policy Guide requires care providers to refer a child for a child advocate when the child is involved in “incidents involving law enforcement on-site.” The commenter further stated that it is critical that children who are arrested or are otherwise involved with law enforcement while in ORR custody are identified during the referral process as they are especially vulnerable and at risk of harm.

ORR Response: ORR agrees that when a particular circumstance requires the referral to a child advocate in the UC Policy Guide, then that reason should be specifically enumerated so that the reason for referral can be easily identified. ORR added the recommended reason for referral to the form.

• Child is reported to be involved in an allegation of sexual abuse or harassment in ORR care

The commenter explained that this checkbox option should be specifically enumerated because the UC Policy Guide requires care providers to refer a child for a child advocate when a child is reported to be involved in an allegation of sexual abuse or sexual harassment in ORR care. The commenter further stated that children who experience abuse are extremely vulnerable and would benefit greatly from the support and advocacy of a child advocate.

ORR Response: ORR agrees that when a particular circumstance requires the referral to a child advocate in the UC Policy Guide, then that reason should be specifically enumerated so that the reason for referral can be easily identified. ORR also agrees that children who experience abuse would benefit greatly from the support and advocacy of a child advocate, which is why ORR requires referral to a child advocate in such cases. ORR added the recommended reason for referral to the form.

• Child experienced severe abuse and neglect

The commenter explained that this checkbox option should be specifically enumerated because the UC Policy Guide requires care providers to refer a child for a child advocate when a child is involved in an incident of “severe abuse or neglect.” The commenter further stated that children who are under immediate and severe threat to their safety and well-being are especially vulnerable, would benefit from child advocate services, and should be identified during the referral process.

ORR Response: ORR agrees that when a particular circumstance requires the referral to a child advocate in the UC Policy Guide, then that reason should be specifically enumerated so that the reason for referral can be easily identified. ORR also agrees that children who are under immediate and severe threat to their safety and well-being would benefit greatly from the support and advocacy of a child advocate, which is why ORR requires referral to a child advocate in such cases. ORR added the recommended reason for referral to the form but removed “severe” to make clear to referrers that child advocate referrals may be made anytime a child experiences abuse and neglect regardless of the severity.

• Child undergoing age determination process

The commenter alleged that ORR’s age determination procedures pose a great risk of erroneous age determinations due to unreliable methods of determining age. The commenter provided an example of a reliance on dental radiographs to determine that an individual is an adult when research has shown that dental radiographs are unreliable in determining a person’s age, and at best, they can only provide an age range for an individual. The commenter stated that child advocates have worked with many children who were at risk of or had been subjected to an age determination process, gathering supporting documentation that successfully established that a child was under the age of 18 in a number of cases. The commenter further stated that given the significant risk of harm to a child due to an erroneous age determination and the enormous benefit of child advocate services to a child undergoing an age determination process, it is critical that children undergoing age determinations are identified during the referral process.

ORR Response: ORR’s acknowledges the challenges in determining the age of an individual, which is why its age determination process requires multiple forms of evidence and that each case be evaluated carefully based on the totality of all available evidence (see 45 CFR 410.1703). Forms of evidence that ORR considers include, but are not limited to, government-issued documents or other official documentation, statements by individuals (including the child) who have personal knowledge of the child’s age and who can credibly attest to the child’s age, and medical assessments. ORR recognizes that dental radiographs are only able to provide an age range, which is why its UC Manual of Procedures states that medical forensics must only be considered as a last resort to other forms of evidence and the use of medical forensics must be approved by an ORR Federal Field Specialist Supervisor. In addition, 45 CFR 410.1703(b)(8) states that medical age assessments must not be the sole form of evidence used to make an age determination and any ambiguous, debatable, or borderline forensic examination results are resolved in favor of finding the individual is a child.

ORR appreciates the support child advocates have provided to children undergoing an age determination and values child advocates’ efforts to unearth additional documentation for ORR to consider. ORR concurs that referrals made for children undergoing an age determination should be specifically enumerated in the form so that child advocates may more easily identify these cases during the referral process. ORR added the recommended reason for referral to the form.

• Four checkboxes related to sex and labor trafficking risk and disclosure:

  • Concern or Risk of Sex Trafficking (please provide more details below)

  • Concern or Risk of Labor Trafficking (please provide more details below)

  • Historical Disclosure of Sex Trafficking

  • Historical Disclosure of Labor Trafficking

The commenter explained that these checkbox options should be specifically enumerated because the UC Policy Guide requires care providers to refer a child for a child advocate when a sex or labor trafficking concern or risk is identified while the child is in ORR custody and when a historical disclosure of sex or labor trafficking is reported. The commenter further noted that it would be helpful during the referral process to have as much information as possible regarding the concern or risk of sex or labor trafficking, which is why they recommend that those two options include a notation stating “please provide more details below,” in order to prompt the referrer to add more details.

ORR Response: ORR agrees that when a particular circumstance requires the referral to a child advocate in the UC Policy Guide, then that reason should be specifically enumerated so that the reason for referral can be easily identified. ORR also agrees that it would be helpful for child advocates to have more details in the referral when there is a concern or risk of sex or labor trafficking. ORR added the recommended reasons for referral to the form.

7. One commenter, a child advocacy organization, recommended that the form allow referrers to provide more context or details regarding the reason for referral. The commenter explained that additional information about the child and the reason(s) for the referral can be very helpful in prioritizing referrals for appointment of child advocates. Specifically, the commenter recommended adding the following field:

   • Provide additional information or details regarding above reason(s) for the referral

ORR Response: ORR agrees that it would be helpful to include a field that allows referrers to provide more context or details regarding the reason for referral. ORR added the recommended field to the form.

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