Washington, DC—As part of its continued campaign to deter migration by imposing human suffering, the Trump administration announced today that it’s seeking changes to the Flores settlement, a decades-old rule (“consent decree”) that requires the U.S. government to treat migrant children humanely, without detaining them indefinitely. Specifically, the Trump administration is seeking to give Immigration and Customs Enforcement (ICE) the authority to determine whether a detention facility qualifies as a childcare facility where the U.S. government can detain migrant families and children until their asylum cases are adjudicated—which could take months or even years.
“Nobody, let alone families and children, should face potential indefinite detention because they sought to avoid harm. Period. Full stop,” said Adam Isacson, Director for Defense Oversight at the Washington Office on Latin America. “To suggest this for migrant children, and at the same time eviscerate oversight of the conditions in which they’re kept, is one of the more cruel policy changes of the dozens that the Trump administration has pushed.”
Since its inception in 1997, the Flores settlement has served as an important backstop in protecting children in federal immigration custody. It prohibits detaining children for more than 20 days, unless they are in a site licensed by its state as a proper childcare facility, a condition that nearly all existing family detention facilities do not meet. The Flores settlement has ensured the humane care of these children, which includes providing them with food, water, supervision, and medical assistance. It has also served as a powerful tool for uncovering unacceptable treatment of migrant children in detention: the lawyers that gained access to the Clint, Texas Customs and Border Protection (CBP) detention space in June of this year, where they documented children subjected to horrific conditions, were authorized to do so by the Flores settlement.
“We saw in Clint, Texas what the Trump administration considered to be ‘acceptable’ conditions for the detention of children. With this change, they’re seeking the authority to define for themselves which facilities meet ‘acceptable’ conditions for potentially indefinite detention,” said Isacson. “It’s a sobering signal of just how far this administration is willing to go in dismantling an already torturously long and under-resourced asylum system.”
While cruel, expanding family detention would also hit U.S. taxpayers very hard. Earlier this year, ICE reported to Congress that family detention will cost $295.94 per family per day in 2020, down (for unclear reasons) from $318.79 in 2019. In the first 10 months of the 2019 fiscal year, 432,838 family members have been apprehended at the U.S.-Mexico border; assuming 2.5 people per family, it would have cost $9.35 billion—more than ICE’s total budget—to detain even half that number for a year.
Humane, cost-effective alternatives to detention exist. One example is an ICE-run Family Case Management Program (FCMP), which operated on a limited basis until the Trump administration ended it in 2017. The program, which connected asylum-seeking families with caseworkers and cost taxpayers only $36 per day, resulted in 99 percent of families showing up for their court dates.
“This outrageous proposal is guaranteed to face a much-welcome challenge in court, as it seeks to replace the horrors of family separation with family incarceration,” said Isacson. “Cruel migration policies are not the solution to this migrant crisis. We know what works here: hire more immigration judges and staff, uphold due process, and work with reformers in Central America to fight the root causes of migration.”