The White House dramatically escalated its campaign to scare Central American families away from crossing the U.S. border on Wednesday, as officials announced plans to cancel the 1997 Flores settlement. The change would eliminate restrictions requiring the release of migrant children from family detention centers within 20 days.
But the White House plan is going to face an uphill battle with math, among other things.
The Trump administration has three family detention centers at its disposal, with a combined capacity of around 3,300 people on paper. Last month, some 42,500 migrants traveling as families crossed into the U.S. just between ports of entry, according to Customs and Border Protection.
If those numbers hold as the Trump administration’s new family detention policy goes into effect, ICE will fill its family detention to capacity in about three days. That would leave immigration authorities little choice but to release incoming families with a notice to appear in immigration court ― the same situation it faces today.
“Not only is this cruel; it also doesn’t accomplish anything,” Kevin Landy, a political appointee during the Obama administration who led efforts to reform ICE detention facilities, told HuffPost. “A tiny fraction of the families who come here will be detained for an agonizingly long time. And Trump officials will probably not be especially concerned about ensuring humane conditions.”
ICE’s family detention capacity is actually lower than its bed space numbers indicate. The two main centers in Texas, both of which are run as for-profit businesses by private prison contractors, use a system of pods to house detainees. ICE can’t hold children in the same pod as unrelated adults. Children of different genders from separate families must also be housed separately. ICE does not publicly disclose the pod arrangements at those centers, which the agency considers proprietary information belonging to the private companies that run them.
And the Karnes County Residential Center, ICE’s second-largest family lock-up with about 830 beds, is currently housing adults rather than families.
“It’s not like they’ve been detaining every family for 20 days and then forced to release them because of Flores,” Mark Greenberg, a senior fellow with the nonpartisan Migration Policy Institute, said. “They will continue to point to Flores as the problem, but the reality is they have had very little capacity for family detention.”
Homeland Security Secretary Kevin McAleenan has asserted that the Trump administration plan “eliminates a key incentive that encourages traffickers to exploit children.” His words echoed a longstanding demand from immigration restrictionists within the Trump administration who deride Flores as a “loophole” allowing Central American families to evade deportation by filing humanitarian relief claims like asylum ― knowing that doing so will allow them to avoid landing in a detention center indefinitely.
Acting Director of ICE Matthew Albence has expressed confidence that keeping families locked in detention while their cases play out will result in swifter deportations and discourage others from coming. Those migrant families who had their cases adjudicated while detained back in 2015, before a federal judge ruled that locking kids up indefinitely violated the Flores settlement, got a final decision within 50 days on average, Albence told CNN.
But Barbara Hines, a former director of the University of Texas Law School’s immigration clinic who worked with detained families during that period, distrusted ICE’s figure. The average might have been skewed down by families who did not have lawyers or go through the appeals process, but she routinely saw cases that lasted between six and nine months, Hines said.
“Quite a few of those cases were won,” Hines said. “Certainly if you appeal your case, children are going to be in detention far longer than 50 days. And 50 days is unacceptable for children. It’s really unacceptable for any migrant seeking protection in the United States … Solving the problem to them means destroying the asylum system.”
The White House’s plan is certain to face legal challenges. But if it moves forward, it’s unclear how the Trump administration will overcome the logistical hurdle posed by the lack of bed space in the face of record-level family crossings. ICE issued a request for contractors to submit plans for facilities capable of detaining up to 15,000 migrant families last year but has yet to move forward. An expansion of that magnitude would cost ICE about $2 billion per year ― about one-quarter of the agency’s total budget.
“They will continue to point to Flores as the problem, but the reality is they have had very little capacity for family detention.”
Any hope of scaling up such a towering family detention system evaporated with the midterm election, which brought control of the House of Representatives back to the Democrats. Most House Democrats wanted family immigrant detention abolished back when Obama was president. It’s even less palatable for them with their nemesis Trump in charge.
ICE’s current budget provides no extra money for immigrant family lock-ups and the agency has yet to announce plans for more facilities.
“We’re not going to speculate as to future scenarios,” ICE spokesperson Bryan Cox wrote in an email to HuffPost.
That leaves ICE with few options for expanding family detention. The agency could hold more families by diverting money away from detaining single adults. Homeland Security has rifled through the pockets of its other agencies in the past to pilfer money for ICE’s overspending on detention.
But without extra money, none of those options is likely to change the status quo. ICE is already detaining thousands more migrants than Congress has directed it to. It costs about three times as much to lock up a parent or child in a family detention center as it does to detain an adult unaccompanied by a child. And setting up new family detention centers on short notice typically inflates the cost.
“At the end of the day, they still have the same three facilities,” a former Homeland Security official told HuffPost. “They still have the same number of family beds. Family detention is not a plug-and-play system like adult detention. You can’t just make a call and get a county jail to come online.”
Immigrant advocacy groups and legal organizations decried the Trump administration’s long-desired plan to skirt the legal restrictions imposed on child detention by the Flores settlement. They often cite the damaging mental health effects of locking up children and point to the availability of alternatives to detention that the White House could expand at a fraction of the cost of family detention.
The lawyers who represent the migrant children as a class in the ongoing litigation over Flores already filed a motion in federal court back in November to block the Trump administration from trying to nix the settlement. U.S. District Judge Dolly Gee held off on ruling until the Trump administration sets its order in writing.
Gee has criticized prolonged family detention in prior rulings, raising the possibility that the White House plan could get blocked in court before it goes into effect two months from now.
“There is a system in place called freedom that allows children and their families to be together,” Holly Cooper, one of the lawyers in the Flores case, told HuffPost. “We do not have to incarcerate them.”