Center for American Progress

RELEASE: CAP Submits Comments Highlighting Harmful Impacts and High Costs of Proposed Flores Rule
Press Release

RELEASE: CAP Submits Comments Highlighting Harmful Impacts and High Costs of Proposed Flores Rule

Washington, D.C. — Today, the Center for American Progress submitted a public comment opposing a proposed rule by the U.S. Department of Homeland Security (DHS) and U.S. Health and Human Services Department (HHS), published in the Federal Register on September 7, 2018. The rule would dissolve the Flores settlement agreement and allow the administration the ability to indefinitely incarcerate children and families.

CAP points out that the DHS and HHS neither addressed nor took into account the harms to children, families, or LGBT individuals, or the high costs the government would bear under the proposed rule. Additionally, there are no data or evidence to suggest that the proposed rule would deter children and families from seeking asylum in the United States, refuting a key claim underpinning the administration’s rationale for proposing the regulation. For these reasons, as detailed in the comments, the proposed rule is arbitrary and capricious and should be withdrawn.

The deadline for comments ends on Election Day, November 6, 2018. CAP’s comment is broken down into the following sections:

  1. Harms to children and families: These include threatening children’s short- and long-term health and well-being; putting children at greater risk of abuse; weakening the parent-child relationship; and restricting families’ access to fair legal representation. Most of all, because the proposed rule would harm children, the proposed rule is inconsistent with the Flores settlement agreement’s sunset provision.
  2. No data to support deterrence arguments: The data do not support the DHS’ assertion that the expansion of family detention in 2014 acted as a deterrent to family migration, or that the July 2015 federal court ruling confirming that the Flores settlement protections applied to accompanied children caused an uptick in family migration.
  3. High costs: The DHS and HHS completely failed to estimate their potential costs under the proposed rule. Under the proposed rule, the DHS will require far more family detention beds and will need to acquire a number of new family incarceration facilities. At the lowest end, the proposed rule will cost the DHS slightly more than $2 billion over a decade, at an annualized rate of $201 million per year. At the highest end, the proposed rule will cost the DHS $12.9 billion over a decade, at an annualized rate of $1.3 billion. These costs far exceed the threshold for a regulation to be considered economically significant and a major rule, triggering additional review which the DHS and HHS failed to undertake.
  4. Negative impacts on LGBT immigrants: These include prolonging the detention of LGBT people in facilities where they do not have basic protections from abuse or access to necessary medical care, as well as in facilities that are inappropriate for housing children—putting LGBT youth in harm’s way by subjecting them to more restrictive custody settings, increasing their vulnerability to abuse—and endangering LGBT immigrants and their families by arbitrarily putting them at a disadvantage for winning their immigration cases. In addition, the proposed rule’s definition of “emergency influx” would lead to the prolonged detention of vulnerable LGBT youth in extremely unsafe U.S. Customs and Border Protection hold facilities.

Click here to read the full comments.

Related resources:

For more information or to speak with an expert on this topic, please contact Rafael J. Medina at [email protected] or 202-478-5313.