[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR236.3]



[Page 431-433]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 236_APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 

ALIENS; REMOVAL OF ALIENS ORDERED REMOVED--Table of Contents

 

         Subpart A_Detention of Aliens Prior to Order of Removal

 

Sec. 236.3  Detention and release of juveniles.



    (a) Juveniles. A juvenile is defined as an alien under the age of 18 

years.

    (b) Release. Juveniles for whom bond has been posted, for whom 

parole has been authorized, or who have been ordered released on 

recognizance, shall be released pursuant to the following guidelines:

    (1) Juveniles shall be released, in order of preference, to:

    (i) A parent;

    (ii) Legal guardian; or

    (iii) An adult relative (brother, sister, aunt, uncle, grandparent) 

who is not presently in Service detention, unless a determination is 

made that the detention of such juvenile is required to secure his or 

her timely appearance before the Service or the Immigration Court or to 

ensure the juvenile's safety or that of others. In cases where the



[[Page 432]]



parent, legal guardian, or adult relative resides at a location distant 

from where the juvenile is detained, he or she may secure release at a 

Service office located near the parent, legal guardian, or adult 

relative.

    (2) If an individual specified in paragraphs (b)(1)(i) through (iii) 

of this section cannot be located to accept custody of a juvenile, and 

the juvenile has identified a parent, legal guardian, or adult relative 

in Service detention, simultaneous release of the juvenile and the 

parent, legal guardian, or adult relative shall be evaluated on a 

discretionary case-by-case basis.

    (3) In cases where the parent or legal guardian is in Service 

detention or outside the United States, the juvenile may be released to 

such person as is designated by the parent or legal guardian in a sworn 

affidavit, executed before an immigration officer or consular officer, 

as capable and willing to care for the juvenile's well-being. Such 

person must execute an agreement to care for the juvenile and to ensure 

the juvenile's presence at all future proceedings before the Service or 

an immigration judge.

    (4) In unusual and compelling circumstances and in the discretion of 

the Director of the Office of Juvenile Affairs, a juvenile may be 

released to an adult, other than those identified in paragraphs 

(b)(1)(i) through (b)(1)(iii) of this section, who executes an agreement 

to care for the juvenile's well-being and to ensure the juvenile's 

presence at all future proceedings before the Service or an immigration 

judge.

    (c) Juvenile coordinator. The case of a juvenile for whom detention 

is determined to be necessary should be referred to the ``Juvenile 

Coordinator,'' whose responsibilities should include, but not be limited 

to, finding suitable placement of the juvenile in a facility designated 

for the occupancy of juveniles. These may include juvenile facilities 

contracted by the Service, state or local juvenile facilities, or other 

appropriate agencies authorized to accommodate juveniles by the laws of 

the state or locality.

    (d) Detention. In the case of a juvenile for whom detention is 

determined to be necessary, for such interim period of time as is 

required to locate suitable placement for the juvenile, whether such 

placement is under paragraph (b) or (c) of this section, the juvenile 

may be temporarily held by Service authorities or placed in any Service 

detention facility having separate accommodations for juveniles.

    (e) Refusal of release. If a parent of a juvenile detained by the 

Service can be located, and is otherwise suitable to receive custody of 

the juvenile, and the juvenile indicates a refusal to be released to his 

or her parent, the parent(s) shall be notified of the juvenile's refusal 

to be released to the parent(s), and they shall be afforded the 

opportunity to present their views to the district director, chief 

patrol agent, Director of the Office of Juvenile Affairs or immigration 

judge before a custody determination is made.

    (f) Notice to parent of application for relief. If a juvenile seeks 

release from detention, voluntary departure, parole, or any form of 

relief from removal, where it appears that the grant of such relief may 

effectively terminate some interest inherent in the parent-child 

relationship and/or the juvenile's rights and interests are adverse with 

those of the parent, and the parent is presently residing in the United 

States, the parent shall be given notice of the juvenile's application 

for relief, and shall be afforded an opportunity to present his or her 

views and assert his or her interest to the district director, Director 

of the Office of Juvenile Affairs or immigration judge before a 

determination is made as to the merits of the request for relief.

    (g) Voluntary departure. Each juvenile, apprehended in the immediate 

vicinity of the border, who resides permanently in Mexico or Canada, 

shall be informed, prior to presentation of the voluntary departure form 

or being allowed to withdraw his or her application for admission, that 

he or she may make a telephone call to a parent, close relative, a 

friend, or to an organization found on the free legal services list. A 

juvenile who does not reside in Mexico or Canada who is apprehended 

shall be provided access to a telephone and must in fact communicate 

either with a parent, adult relative, friend, or with an organization 

found on the free legal services list prior to presentation



[[Page 433]]



of the voluntary departure form. If such juvenile, of his or her own 

volition, asks to contact a consular officer, and does in fact make such 

contact, the requirements of this section are satisfied.

    (h) Notice and request for disposition. When a juvenile alien is 

apprehended, he or she must be given a Form I-770, Notice of Rights and 

Disposition. If the juvenile is less than 14 years of age or unable to 

understand the notice, the notice shall be read and explained to the 

juvenile in a language he or she understands. In the event a juvenile 

who has requested a hearing pursuant to the notice subsequently decides 

to accept voluntary departure or is allowed to withdraw his or her 

application for admission, a new Form I-770 shall be given to, and 

signed by the juvenile.



[62 FR 10360, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002]