Last month, the Trump administration announced a new rule that would upend a decades-old ban on the indefinite detention of immigrant children.
The Flores Agreement, which has been U.S. immigration law for 20 years and dictates that children should not be held in detention for more than 20 days, would be replaced by a rule proposed by The Department of Homeland Security (DHS).
Withdrawing from Flores, according to DHS Secretary Kristjen Nielsen, is necessary to end one of the “primary pull factors for illegal immigration” — an argument which immigration experts say is deeply flawed.
The new rule would allow Immigration and Customs Enforcement (ICE) officials to house families in unsafe detention facilities while their asylum petitions play out in court, which could take months or even years.
In addition to extending the length of time an immigrant child is forced to spend in detention, ending Flores would come with a hefty price tag. According to a new report from the Center For American Progress (ThinkProgress is an editorially independent newsroom housed at CAP), the proposed rule would cost at least $2 billion and as much as $12.9 billion over the course of a decade — up to $1.3 billion per year.
The cost is so large that it would likely require congressional approval, the report suggests.
Even under the most conservative estimate, the proposed rule would far exceed the $100 million threshold by which a regulation would be considered economically significant, thus triggering additional review and analysis—which DHS and HHS declined to undertake. These high costs would also render the proposal a ‘major rule’ under the terms of the Congressional Review Act—a designation that would trigger both a Government Accountability Office (GAO) report prior to the rule’s implementation and additional time before the rule takes effect, giving Congress the opportunity to take action to stop it.
The high cost estimates are a result of the dramatically increased length of time the people would be held under the new rule. The Center for American Progress estimates that the number of immigrants detained by the federal government would also exceed the current 3,326-family-detention-bed capacity if the new rule were put into place, therefore additional family residential centers would have to be built out of necessity.
Construction of a new facility would require one-time start-up costs of “at least $72 million and as much as $520 million at the highest end.” ICE estimates the daily cost of detaining a family, meanwhile, to be more than $300.
The estimate of $12.9 billion over a decade to detain undocumented migrant families does not include additional costs incurred by the Department of Health and Human Service (HHS), which runs the Office of Refugee Resettlement (ORR) — the agency tasked with oversight of unaccompanied minors. The Trump administration, however, has not provided enough information to allow experts to calculate exactly how high those costs would be.
As The New York Times has reported, the number of children currently held in ORR facilities has increased sharply, from only 2,400 in May 2017 to nearly 13,000 children as of September 2018.
This dramatic rise is not because of an increase in border crossings of unaccompanied minors, but because the Trump administration is releasing far fewer children to sponsors.
This is probably due to an agreement between HHS and ICE that has resulted in fewer sponsors or family members — many of whom are undocumented themselves — coming forward to voluntarily look after immigrant children due to a fear of being arrested by ICE.
As ThinkProgress has previously reported, from early July through early September, ICE detained 41 undocumented immigrants who came forward to take care of undocumented children in government custody, and the agency is reportedly planning to go after more.
Without sponsors, undocumented immigrant children fall back into federal custody, maintaining the cycle of indefinite detention.