Standards relating to sponsors

(a) Procedures and protections (1) In general The Director shall not impose sponsor requirements (including application deadlines and requests for information or documentation about prospective sponsors, the household members of prospective sponsors, or other individuals) that do not have a substantial and direct impact on child safety. (2) Nondiscrimination In reviewing an application for sponsorship, the Director may not rely on the national origin, immigration status, language, religion, sexual orientation, sex (including gender identity or gender expression), color, or race of the child concerned or of the prospective sponsor to delay or deny the application. (3) Prohibition on certain reasons for sponsorship denial A prospective sponsor may not be denied sponsorship solely due to— (A) poverty, use of public assistance, lack of employment or health insurance, or past or current health conditions that do not have a substantial and direct impact on child safety; (B) absence of a pre-existing relationship with the unaccompanied noncitizen child concerned; or (C) immigration status. (4) Legal rights of prospective sponsors (A) In general In making decisions about the sponsorship of an unaccompanied noncitizen child, the Director shall— (i) take into consideration the legal rights of any parent, legal guardian, or family member who is seeking sponsorship of the child; and (ii) ensure that Office of Refugee Resettlement processes for ensuring the child’s safe release do not interfere with such rights. (B) Parents A parent shall not be denied reunification with their child absent a determination supported by clear and convincing evidence that custody of the child by the parent is likely to result in serious emotional or physical damage to the child. (5) Assessment required (A) In general The Director may only release an unaccompanied noncitizen child to an individual or a licensed program for whom a prospective sponsor assessment has been completed, consistent with the requirements of section 235(c)(3) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(c)(3)). (B) Elements A sponsor assessment shall include— (i) a completed family reunification application; and (ii) consideration of the wishes and concerns of the unaccompanied noncitizen child concerned. (C) Opportunity to address concerns A prospective sponsor shall be afforded the opportunity to address any concern raised during the sponsor assessment process before the prospective sponsor's application is denied. (D) Background checks (i) In general Fingerprint-based checks of national crime information databases (as defined in section 534(f)(3) of title 28, United States Code) may be requested for prospective sponsors if a public records check of the sponsor reveals safety concerns or there is a documented risk to the safety of the child. (ii) Limitation The Director shall deny sponsorship for an unaccompanied noncitizen child if the criminal history of a prospective sponsor, or a household member of the sponsor— (I) includes a conviction for child abuse or trafficking; or (II) includes a conviction that has a direct and immediate impact on the safety of the unaccompanied noncitizen child. (6) Safeguards (A) In general The Director shall implement safeguards to prevent any information obtained in the course of the sponsor assessment process from being used for any purpose other than assessing the sponsor’s fitness to care for an unaccompanied noncitizen child. (B) Applicability Such safeguards shall apply regardless of the outcome of the prospective sponsor’s application. (7) Annual evaluation (A) In general Not less frequently than annually, the Director shall conduct an evaluation of Office of Refugee Resettlement policies and practices to determine whether such policies and practices create unnecessary barriers to release or result in delays in unaccompanied noncitizen children’s prompt release to sponsors. (B) Submission to Ombudsperson The Director shall submit each evaluation conducted under subparagraph (A) to the Ombudsperson. (b) Sponsorship determination (1) In general Not later than 7 days after the date on which the Director receives a family reunification application from a prospective sponsor, the Director shall make a determination with respect to whether the unaccompanied noncitizen child concerned may be placed with the sponsor. (2) Consideration of effect of denial In making a determination under paragraph (1), the Director shall take into consideration the effect a denial of the application, and continued immigration custody for the unaccompanied noncitizen child concerned, would have on— (A) the health and well-being of the child; and (B) in the case of a prospective sponsor who is a parent, legal guardian, or a family member of the child, the right of the parent, legal guardian, or family member to the care and custody of the child. (3) Sponsorship hearing (A) In general The Director shall provide an opportunity for an administrative hearing, conducted in accordance with sections 554 through 557 of title 5, United States Code, in the case of— (i) a determination that a prospective sponsor is not fit to receive the unaccompanied noncitizen child concerned; or (ii) failure by the Director to make a determination on a family reunification application within the timeframe set forth in paragraph (1). (B) Notice (i) In general Not later than 24 hours after a determination or failure described in subparagraph (A), the Director shall provide notice of such a hearing to— (I) the unaccompanied noncitizen child; (II) the legal counsel and the child advocate of such child; (III) the prospective sponsor; and (IV) the legal counsel of such prospective sponsor. (ii) Elements The notice required under clause (i) shall include, in a language the unaccompanied noncitizen child and the prospective sponsor understand, the following: (I) The time, date, and location of the hearing. (II) Notice with respect to the availability of transportation to the hearing for the child and the prospective sponsor under subparagraph (E)(i). (III) In the case of a determination that the prospective sponsor is unfit— (aa) the justification for such determination; and (bb) a description of any supporting evidence and information. (IV) In the case of a failure to make a timely determination, a justification for such failure. (V) Notification that the unaccompanied noncitizen child and prospective sponsor may submit additional evidence, including witness testimony, in support of the family reunification application at or before the hearing. (C) Limitation on Office of Refugee Resettlement evidence In a hearing under this paragraph, the Director may only submit evidence and information that is described on the notice provided under subparagraph (B). (D) Timing of hearing (i) In general Except as provided in clause (ii), a hearing under this paragraph shall occur not less than 7 days and not more than 14 days after the date on which notice under subparagraph (B) is provided. (ii) Request for additional time Such a hearing may occur on a date that is more than 14 days after the date such notice is provided if the prospective sponsor requests additional time. (E) Presence at hearing (i) Transportation On request by the unaccompanied noncitizen child or the prospective sponsor, the Director shall facilitate the transportation of the child and the prospective sponsor to a centralized location for the hearing. (ii) Waiver of child's presence With the assistance of counsel, an unaccompanied noncitizen child may waive the child's presence at a hearing under this paragraph. (iii) Virtual hearing An unaccompanied noncitizen child may request a virtual hearing under this paragraph and waive the right to an in-person hearing. (F) Procedural matters (i) Neutral fact finder A hearing under this paragraph shall be presided over by a neutral fact finder who— (I) is not an employee of the Office of Refugee Resettlement; and (II) has expertise in child welfare. (ii) Child and sponsor rights At a hearing under this paragraph, an unaccompanied noncitizen child and the child's prospective sponsor shall have— (I) the right to counsel; and (II) the right and opportunity to confront, inspect, and rebut the evidence alleged to justify a determination by the Director that the prospective sponsor is unfit. (iii) Interpretation services An interpreter in the preferred language of the unaccompanied noncitizen child and the prospective sponsor shall be made available for a hearing under this paragraph. (iv) Burdens of production and proof The Director shall have the burden of production and the burden of proof, by clear and convincing evidence, to establish that— (I) placement with the prospective sponsor is likely to result in serious emotional or physical damage to the child; and (II) continued Office of Refugee Resettlement custody is the least restrictive setting that is in the best interests of the child. (v) Record of proceedings The record of proceedings for a hearing under this paragraph, and all related documentation— (I) shall be maintained separately and apart from the unaccompanied noncitizen child's immigration file (commonly called the A-File); and (II) 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. (G) Written decision (i) In general Not later than 2 business days after the date of a hearing under this paragraph, the fact finder shall— (I) issue a written decision ordering the release of the unaccompanied noncitizen child to the prospective sponsor or denying such release, which shall be binding on the Office of Refugee Resettlement; and (II) provide the written decision to— (aa) the child and the prospective sponsor; and (bb) the legal counsel and the child advocate of the child and the legal counsel of the prospective sponsor, as applicable. (ii) Denials In the case of a denial of release to the prospective sponsor, the decision shall— (I) set forth detailed, specific, and individualized reasoning for such denial; and (II) notify the child and prospective sponsor of their right to seek review of the decision by the Ombudsperson under subparagraph (H). (iii) Language access The decision shall be made available in a language and in a format the unaccompanied noncitizen child and the prospective sponsor understand. (H) Review by Ombudsperson (i) In general On request by an unaccompanied noncitizen child, the legal counsel or prospective sponsor of such child, or the legal counsel of such prospective sponsor, the Ombudsperson shall carry out a review of a decision under subparagraph (G), which shall be completed not later than 15 days after the date on which the request for review is made. (ii) Recommendation (I) In general In carrying out a review under this subparagraph, the Ombudsperson may make a recommendation on the placement or sponsorship of the unaccompanied noncitizen child concerned. (II) Finding of erroneous decision (aa) In general If the Ombudsperson determines that the decision under subparagraph (G) was erroneous, the Ombudsperson shall submit to the Director a recommendation for further action. (bb) Written statement (AA) In general 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. (BB) Nondelegation The Director may not delegate the requirement to issue such a written statement to any other individual. (I) Judicial review An unaccompanied noncitizen child or nonparent family member of the child, with the consent of the child, may obtain judicial review of a decision under subparagraph (G) in a district court of the United States. (J) Continued efforts by Office of Refugee Resettlement During the pendency of a hearing under this paragraph, and any review of a decision resulting from such a hearing under subparagraph (H) or (I), the Director shall continue to seek alternative prospective sponsors for the unaccompanied noncitizen child concerned.