25655062, 65CER22-1 - Florida Administrative Rules, Law, Code, Register

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Notice: 25655062

Notice of Emergency Rule

Department:

DEPARTMENT OF CHILDREN AND FAMILIES

Division:

Family Safety and Preservation Program

Overview

RULE:

65CER22-1

Standards for Unaccompanied Alien Children and Unaccompanied Refugee Minor Programs

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:

On September 28, 2021, the Governor of the State of Florida signed Executive Order 21-223, declaring that the Biden administration’s refusal to faithfully enforce federal immigration laws has led to an unprecedented surge of illegal border crossings at the southwest border of the United States.  In July 2021 alone, over 213,000 persons attempted to illegally enter the United States at the southwest border, the highest number in more than 20 years, and another 209,840 persons attempted to illegally enter in August. Note 1.  For the entire federal fiscal year of 2021, over 1.7 million foreign nationals were encountered at the southwest border attempting to enter the country illegally. Note 2. In the first quarter of this federal fiscal year, the reported number of such encounters stands at more than 518,000. Note 3. By contrast, in the last full federal fiscal year of the previous administration (federal fiscal year 2020), there were fewer than 460,000 such encounters, and in the fiscal year before that (federal fiscal year 2019), there were fewer than 980,000 encounters. Note 4.
The Biden administration has taken numerous actions to cause and further exacerbate this border crisis.  It terminated the previous administration’s Migrant Protection Protocol (MPP) program (also known as the “Remain in Mexico” policy), reinstituted a “catch and release” policy, ended further construction of a border wall, and declined to detain and remove certain categories of illegal aliens who had been convicted of committing crimes.  The administration’s unlawful termination of MPP was successfully challenged in court, see Texas v. Biden, No. 21-10806 (5th Cir. Dec. 21, 2021), but the Biden administration is currently working to reimplement the program.  Its other actions, however, remain in effect.
Notwithstanding that federal immigration law generally requires that aliens entering the United States without a clear right to be admitted (including applicants for asylum) must be detained pending further proceedings, see 8 U.S.C. § 1225(b)(2)(A), id. § 1225(b)(1)(B), the Biden administration has instead been releasing into the interior of the United States large numbers of illegal aliens apprehended at the southwest border.  The U.S. Border Patrol released 60,559 illegal aliens from the southwest border in July 2021 alone and another 44,112 in August 2021, a massive increase from the 17 illegal aliens released in December 2020, the last full month of the previous administration. Note 5.  During federal fiscal year 2021, the Border Patrol released in total more than 248,000 aliens apprehended at the southwest border, almost all of which occurred after January 2021. Note 6. This number does not reflect additional releases by other elements of the U.S. Department of Homeland Security (DHS).  In an October 20, 2021 letter, DHS confirmed that at least 5,900 single illegal alien adults who were released at the southwest border have reported to an Immigration and Customs Enforcement (ICE) field office in Florida.  This number likely vastly underreports the number of released illegal aliens from the southwest border who have resettled in Florida because approximately 80% of aliens who are released at the border and are directed to report to an ICE office within 60 days reportedly fail to do so. Note 7. Because the Federal Government does not actively coordinate or consult with the State of Florida concerning the illegal aliens that it releases from the southwest border into the interior of the United States, the State of Florida has no knowledge about the backgrounds, criminal history, immigration status, or the status of removal proceedings for the aliens who have resettled in Florida.  The State of Florida has brought a legal challenge to the Biden administration’s unlawful “catch and release” policy, which is now pending in the U.S. District Court for the Northern District of Florida.  See First Amended Complaint for Declaratory and Injunctive Relief, State of Florida v. United States, No. 3:21-cv-01066-TKW-EMT (N.D. Fla. Feb. 1, 2022) (articulating harms to the State of Florida because of the Biden administration’s “catch and release” policy).   
The surge of foreign nationals attempting to enter illegally at the southwest border has included a large number of Unaccompanied Alien Children (UAC), defined by federal law as a child who has no lawful immigration status; has not attained 18 years of age; and, with respect to whom, there is no parent or legal guardian in the United States, or no parent or legal guardian in the United States available to provide physical custody and care, see 6 U.S.C. § 279(g)(2). Over 146,000 encounters at the southwest border for federal fiscal year 2021 involved UAC or single minors, compared to approximately 33,000 in fiscal year 2020 and 80,000 in fiscal year 2019. Note 8. For federal fiscal year 2022, the number of such encounters has already reached more than 38,000.  Note 9.  Under existing federal law, the U.S. Department of Health and Human Services (HHS) must take custody of these UAC and attempt to place them with sponsors in the United States until the UAC’s immigration proceedings are completed.  While the UAC await placement with a sponsor, HHS will often house the UAC in group home facilities or foster homes that are operated by private entities or individuals under contract with HHS and licensed by the states where the facilities or homes are located.  It is estimated that at least 4,284 UAC were housed in group home facilities or foster homes in Florida over the last year. During federal fiscal year 2021, 11,145 UAC were placed with sponsors in Florida, more than the 10,773 UAC placed in California, a substantially larger state. Note 10. So far during federal fiscal year 2022, 3,597 UAC have already been placed in Florida.  Note 11. 
	Neither DHS nor HHS actively coordinates or consults with the State of Florida, including the Department, on the UAC that are resettled in Florida.  The State does not receive meaningful, if any, advance notice when UAC are transported to Florida and is not meaningfully consulted on the number of UAC that the State’s child-caring resources and capacity could feasibly support without adversely affecting children already present in Florida and under the State’s protection and care.  Recently, the State of Florida discovered that, between May and October 2021, there were 78 flights that arrived in Florida likely transporting UAC.  This occurred without advance notice to the Department and without the State’s consent.  The State is given no opportunity to object to the transportation or resettlement of UAC in Florida.  
	Moreover, the State receives no information on the background, criminal history, immigration status, status of removal proceedings, or the sponsors of the UAC brought to Florida.  See, e.g., Letter from Governor Ron DeSantis to DHS Secretary Alejandro Mayorkas, Resettlement of Illegal Aliens in Florida, Aug. 26, 2021; Letter from Acting ICE Director Tae Johnson to Governor Ron DeSantis, Oct. 20, 2021; Letter from DHS Secretary Alejandro Mayorkas to Governor Ron DeSantis, Nov. 24, 2021.  UAC are regularly placed with sponsors without adequate follow-up by HHS or the placement entities to ensure the safety and welfare of the UAC.  According to a recent report, between January and May 2021, federal contractors responsible for placing UAC with sponsors across the United States were unable to reach the minor or the sponsor in roughly one of every three attempts.  Note 12.  Nor does the State have any assurance that the UAC are, in fact, minors.  As a result of the chaos at the southwest boarder, there is a significant risk of insufficient and inaccurate vetting of people claiming protection as UAC.  Many UAC are male teenagers nearing adulthood, and some are gang members when they arrive or later become gang members. Note 13.  Recently, a 24-year-old Honduran national was charged with murder in Florida after having falsely represented his age and having been released into the United States as a UAC.  Note 14.  In short, the Federal Government has failed to provide the State of Florida with sufficient answers to its requests for information on the resettlement of illegal aliens, including UAC, so that their safety and the safety and welfare of Florida’s citizens, including children already present in Florida, can be secured.  The Federal Government’s failure to enforce federal immigration law and secure the border, as well as the absence of meaningful coordination and consultation concerning the resettlement of UAC in Florida, are an immediate danger to the safety and welfare of Floridians, including its most vulnerable children, as well as recently arrived UAC.  (The Federal Government’s conduct with respect to the resettlement of UAC in Florida stands in stark contrast to the Federal Government’s conduct with respect to the resettlement of Unaccompanied Refugee Minors (URM), where the Federal Government has a cooperative agreement in place with the State of Florida.)   
To date, the Department has generally granted licenses to facilities that sought to house UAC brought to Florida by HHS.  In light of the crisis described above, Section 8 of Executive Order 21-223 directed the Department to “determine whether the resettlement of unaccompanied alien children in Florida from outside of the state constitutes ‘evidence of need’ under section 409.175(5)(b)(1), Florida Statutes, sufficient to justify the award of a license under Florida law to family foster homes, residential child-caring agencies, or child-placing agencies that seek to provide services for unaccompanied alien children.”  “To the extent that such resettlement of unaccompanied alien children in Florida is determined not to constitute ‘evidence of need’ under Florida law,” the executive order directed the Department to “amend, if necessary, Florida Administrative Code Rule 65C-46.022, ‘Standards for Unaccompanied Alien Children (UAC) Homes and Unaccompanied Refugee Minor Programs,’ in accordance with state law, to reflect the Department’s determination.”  In this Emergency Rule, the Department determines that an application for issuance or renewal of a license to house UAC or URM, who are being resettled in Florida from outside of the state, does not constitute “evidence of need,” § 409.175(5)(b)1, Florida Statutes, “to protect the health, safety, and well-being of all children in the state” cared for by residential child-caring agencies, § 409.175(1)(a), Florida Statutes, in the absence of a cooperative agreement between the State of Florida and the Federal Government in which the State of Florida is entitled, at a minimum, to advance notice and meaningful consultation before the resettlement of such UAC or URM in Florida.  The Emergency Rule also prohibits existing licensees from adding to their existing UAC population and imposes additional requirements to ensure that such licensees protect the safety and welfare of UAC that they place with sponsors in the state.
Given the ongoing crisis at the border, including the Federal Government’s failure to enforce federal immigration law and to secure the border, the resettlement of UAC in Florida, its ongoing refusal to provide meaningful coordination and consultation, its failure to provide adequate protection for and supervision of UAC once they are placed with sponsors in the state, and its failure to adequately screen purported UAC (as evidenced by the recent murder charge brought against an adult foreign national who misrepresented his age to gain entry to the United States), emergency rulemaking is justified and necessary.      

Note 1: Rebecca Beitsch, US-Mexico July Border Crossings Hit 20 Year High, The Hill (Aug. 12, 2021), https://thehill.com/policy/national-security/567647-us-mexico-july-border-crossings-near-20-year-high; see U.S. Customs & Border Prot., Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last updated Jan. 4, 2022) (showing 213,593 for July and 209,840 for August).
Note 2: U.S. Customs & Border Prot., Southwest Land Border Encounters, supra note 1.
Note 3: Id.
Note 4: Id.
Note 5: See U.S. Customs & Border Prot., Custody and Transfer Statistics FY2021, https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics-fy2021 (last accessed Feb. 9, 2022).
Note 6: See id.
Note 7: See Mark Krikorian, Immigration Enforcement on the Honor System, https://www.nationalreview.com/corner/immigration-enforcement-on-the-honor-system/ (July 16, 2021).  In addition, between federal fiscal year 2008 and 2019, “32 percent of aliens referred to [immigration courts] absconded into the United States” and did not report to their hearings.  See Memorandum Opinion and Order, Texas v. Biden, No. 2:21-CV-067-Z, 2021 WL 3603341, at *4 (N.D. Tex. Aug. 13, 2021).  
Note 8: See U.S. Customs & Border Prot., Southwest Land Border Encounters, supra note 1.
Note 9: See id.
Note 10: See Office of Refugee Resettlement, Unaccompanied Children Released to Sponsors by State (June 24, 2021), https://www.acf.hhs.gov/orr/grant-funding/unaccompanied-children-released-sponsors-state.
Note 11: See id.
Note 12: See Stef W. Knight, Exclusive: Government Can’t Reach One-in-Three Released Migrant Kids (Sept. 1, 2021), https://www.axios.com/migrant-children-biden-administration-a597fd98-03a7-415c-9826-9d0b5aaba081.html.
Note 13: See Camilo Montoya-Galvez, U.S. Shelters Received a Record 122,000 Unaccompanied Migrant Children in 2021, CBS News (Dec. 23, 2021), https://www.cbsnews.com/news/immigration-122000-unaccompanied-migrant-children-us-shelters-2021/ (stating that nearly three-quarters of unaccompanied minors encountered at the border during the 2021 fiscal year were believed to be ages 15 to 17 and roughly two-thirds of the total were males); Kerry J. Byrne, The Number of Adult Migrants Posing as Children at Border Surging, N.Y. Post (Nov. 13, 2021), https://nypost.com/2021/11/13/the-number-of-adult-migrants-posing-as-children-at-border-surging/ (reporting that about “‘30% of the MS-13 members arrested in recent years by ICE originally entered the U.S. as unaccompanied minors’”); see also Written testimony of CBP U.S. Border Patrol Acting Chief of Carla Provost for a Senate Committee on the Judiciary hearing titled “The MS-13 Problem: Investigating Gang Membership As Well As Its Nexus to Illegal Immigration, and Assessing Federal Efforts to End the Threat”, Department of Homeland Security (June 21, 2017), https://www.dhs.gov/news/2017/06/21/written-testimony-cbp-senate-committee-judiciary-hearing-titled-ms-13-problem#fn3; Unaccompanied child immigration loophole releases MS-13 gang members, AP News (Jan. 13, 2019), https://apnews.com/article/5d2784fb7c909b43791d6aea63339a6c.  
Note 14: See Adam Shaw, Honduran Illegal Immigrant Charged with Murder Entered US Falsely Claiming to be Unaccompanied Minor: Report (Nov. 4, 2021), https://www.foxnews.com/politics/honduran-illegal-immigrant-charged-murder-entered-us-unaccompanied-minor.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES:

The procedure is fair under the circumstances because the Emergency Rule ends the State’s practice of facilitating the Federal Government’s UAC resettlement program without terminating existing licenses or otherwise permanently foreclosing the issuance of licenses for UAC in the future.  Instead, going forward, the State will require a meaningful cooperative agreement with the Federal Government, including a commitment to resume full enforcement of the immigration laws and to secure the border, before issuing or renewing licenses for housing UAC.  (The same principle will apply for licenses to house URM, but there is a cooperative agreement with the Federal Government already in place.)  In the meantime, existing licensees will not be permitted to add to their existing UAC population and will be subject to additional obligations to ensure the welfare and safety of the UAC whom they place with sponsors in Florida, but their existing licenses will not be cancelled.

SUMMARY:

The Department of Children and Families hereby provides notice of renewal of Emergency Rule 65CER22-1, Standards for Unaccompanied Alien Children and Unaccompanied Refugee Minor Programs, as adopted on February 11, 2022, and noticed in Volume 48, Number 30 of the Florida Administrative Register published on February 14, 2022. 
On February 10, 2022, the Department of Children and Families published a Notice of Proposed Rule pursuant to section 120.54(3)(a)1, Florida Statutes, in Volume 48, Number 28 of the Florida Administrative Register for Proposed Rule 65C-9.004 to adopt a permanent rule to: (1) require a cooperative agreement between the State of Florida and the Federal Government in order to demonstrate “evidence of need” under section 409.175, Florida Statutes, to obtain or renew a license for a residential child-caring agency, child-placing agency, or foster home caring for Unaccompanied Alien Children or Unaccompanied Refugee Minors; and (2) establish regulations for conducting welfare checks of the Unaccompanied Alien Children placed with sponsors in Florida.
Proposed Rule 65C-9.004 has been submitted to the Legislature for ratification, and is therefore awaiting legislative ratification pursuant to section 120.541(3), Florida Statutes. Pursuant to section 120.54(4)(c)2, Florida Statutes, Emergency Rule 65CER22-1, Florida Administrative Code, is renewed.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:

Elizabeth Floyd. Elizabeth can be reached at Elizabeth.Floyd@myflfamilies.com.

PRINT PUBLISH DATE:

3/11/2022 Vol. 48/49

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
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Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=65CER22-1&PDate=3/11/2022&Section=4

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