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Lankford, Grassley Demands Changes to Biden Admin Rule Endangering Unaccompanied Alien Children

WASHINGTON, DC – Senators James Lankford (R-OK) and Chuck Grassley (R-IA), along with their colleagues, called on the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement (ORR) to overhaul its harmful and deficient policies governing the agency’s treatment of unaccompanied alien children in the United States. ORR’s Proposed Rule—parts of which the agency is already enforcing—allows vulnerable children to be placed in the custody of unvetted, potentially criminal sponsors and obstructs whistleblowers from reporting to Congress on abuse in the program. The letter demands ORR rewrite its policies or face congressional action to overturn the finalized rule.

“This Proposed Rule ignores nearly seven years of oversight conducted by Congress and the Office of Inspector General and reveals chronic foot-dragging—if not total reluctance—when it comes to protecting vulnerable children,” the Senators wrote.

“ORR’s Proposed Rule abdicates the agency’s responsibility for protecting the vulnerable children in its custody from harmful behavior by poorly vetted, potential criminals. For these services, the taxpayer paid ORR $5.5 billion in FY2022. The Proposed Rule is wholly unworkable and ORR should discard it and its current practices. If not, Congress will have no choice but to introduce a resolution of disapproval under the Congressional Review Act,” the Senators concluded.

Senators Lindsey Graham (R-SC), Shelley Moore Capito (R-WV), Marsha Blackburn (R-TN), Markwayne Mullin (R-OK), Ted Cruz (R-TX), Bill Hagerty (R-TN), Tim Scott (R-SC), Pete Ricketts (R-NE), Rick Scott (R-FL), Mike Lee (R-UT), Cynthia Lummis (R-WY), Eric Schmitt (R-MO), Katie Britt (R-AL), Joni Ernst (R-IA), Mike Braun (R-IN), Thom Tillis (R-NC), J.D. Vance (R-OH), Roger Marshall (R-KS), Mike Rounds (R-SD), Ted Budd (R-NC), Steve Daines (R-MT), Ron Johnson (R-WI), John Kennedy (R-LA), Deb Fischer (R-NE), John Hoeven (R-ND), Jim Risch (R-ID), John Thune (R-SD), John Cornyn (R-TX), Josh Hawley (R-MO), Todd Young (R-IN), Mike Crapo (R-ID), Tom Cotton (R-AR), Kevin Cramer (R-ND), Jerry Moran (R-KS), John Barrasso (R-WY), Tommy Tuberville (R-AL), and Cindy Hyde-Smith (R-MS) also signed the letter.

View the full text of the letter here or below.

Dear Director Dunn Marcos and Acting Assistant Secretary Hild:

In September, you approved the “Unaccompanied Children Program Foundational Rule” (“Proposed Rule”), which contains a number of alarming, dangerous, and potentially illegal provisions. This Proposed Rule ignores nearly seven years of oversight conducted by Congress and the Office of Inspector General and reveals chronic foot-dragging—if not total reluctance—when it comes to protecting vulnerable children. It provides ample protections to government bureaucrats at the expense of children. Even more concerning, “the requirements being [adopted] in this proposed rule are already enforced by [the Office of Refugee Resettlement (ORR)].” 

In FY2021, the Office on Trafficking in Persons saw a more than 140% increase from the previous year in requests for assistance on behalf of foreign national children. The majority of these requests were for unaccompanied alien children between the ages of 13 and 17. Despite the staggering number of unaccompanied children, the Proposed Rule makes most vetting for sponsors of unaccompanied minors simply optional. ORR may require “an investigation of the living conditions,” “verification of the identity and employment of the individuals offering support,” “interviews of members of the household,” “a home visit,” “review of [the sponsor’s] past criminal history,” “fingerprinting,” consulate checks of sponsor identification, or “a background check on the proposed sponsor.” However, these basic checks are not necessary to receive custody of a child. 

In fact, ORR does not even consider a sponsor’s criminal record, current illegal drug use, history of abuse or neglect, or other child welfare concerns “necessarily disqualifying to potential sponsorship.” “ORR would not disqualify potential sponsors based solely on their immigration status” or “employment status,” even if the sponsor was a complete stranger to the child.

In effect, ORR accepts a sponsor’s representations almost entirely on face value. ORR then delivers the child at taxpayer expense and free-of-cost to the un-vetted sponsor, opening up the possibility that a vulnerable child could fall into the hands of a potentially criminal or drug-addicted sponsor. At this point, ORR considers its work largely done.

ORR assumes no role or responsibility in preventing a child’s sponsor from giving him or her away after placement. According to the Proposed Rule, “ORR is not proposing to require that the sponsor seek ORR’s permission to transfer custody of the unaccompanied [alien] child. It simply “retains an interest in knowing this information.” ORR will conduct a home study for “a child who has been a victim of physical or sexual abuse,” if the physical or sexual abuse occurred “under circumstances that indicate the child’s health or welfare has been significantly harmed or threatened.” However, the rule goes on to note that, if ORR checks-up on the child, it will “inform the potential sponsor whenever it plans to conduct a home study.” This would allow a criminal sponsor enough time to destroy evidence and intimidate the child. Worse, the Proposed Rule allows ORR to conduct certain safety and well-being check-ins virtually.

ORR also neglects to ensure a sponsor’s legal immigration status. ORR “will not share any immigration status information relating to potential sponsors with any law enforcement or immigration related entity at any time.” ORR appears equally ambivalent to the child’s criminal conduct. Its influx facilities simply “separate … those unaccompanied [alien] children who … have perpetrated sexual abuse.” In fact, “ORR would like to ensure law enforcement is called in response to an unaccompanied [alien] child’s behavior only as a last resort” and “a call by a care provider facility to law enforcement may trigger an evaluation of staff involved regarding their qualifications…”

Recognizing its conduct is objectionable, ORR’s Proposed Rule protects the organization from congressional scrutiny by forcing whistleblowers to identify themselves to ORR before going to Congress. ORR’s whistleblower retaliation is so pervasive that the Department of Health and Human Services Office of Inspector General recommended mandatory whistleblower protection training in 2022. The Assistant Secretary for Children and Families concurred with this recommendation and acknowledged “whistleblower protections are a key mechanisms for ensuring the safety and wellbeing of all children in ORR care.” Yet in a shocking reversal, ORR now “proposes that employees, former employees, or contractors … must not disclose unaccompanied [alien] children’s case file records or provide information about unaccompanied [alien] children, their sponsors, family or house hold members to anyone … without first providing advanced notice to ORR.” This advanced notice requirement expressly captures protected whistleblower disclosures and appears designed to keep employees quiet in violation of the Whistleblower Protection Act and other whistleblower protection provisions.

ORR’s Proposed Rule abdicates the agency’s responsibility for protecting the vulnerable children in its custody from harmful behavior by poorly vetted, potential criminals. For these services, the taxpayer paid ORR $5.5 billion in FY2022. The Proposed Rule is wholly unworkable and ORR should discard it and its current practices. If not, Congress will have no choice but to introduce a resolution of disapproval under the Congressional Review Act.

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