9th Circuit Rules Against AB 32, Advocates Vow to Fight On
The 9th Circuit has issued a devastating ruling against a California law, AB 32, that banned the use of for-profit facilities to detain immigrants. The ruling was issued on October 5, 2021, by a panel that included two Trump-appointed judges forming the majority, with a third democratically appointed judge writing the dissent. The ruling may mean that California cannot enforce AB 32 against civil detention facilities used by U.S. Immigration and Customs Enforcement (ICE) to detain immigrants. However, California may still appeal the decision.
The ruling is the latest chapter in an ongoing battle between advocates and private prison corporations in California over what a state can and cannot do concerning the regulation of private detention facilities. Immigrant Legal Defense joined Immigrant Defense Advocates, the California Collaborative for Immigrant Justice, and the Center for Gender and Refugee Studies in filing an amicus brief in the case focused on the unclean hands of the GEO Group.
In 2019, California made headlines when it passed AB 32, a landmark bill that banned private prisons and detention facilities. The law was hailed as an important step toward the abolition of an industry that has profited for decades from the incarceration and detention of communities of color. Since then, various states, including Washington and Maryland, have followed suit, passing bills to curtail private incarceration.
For immigration advocates, the bill was an exciting and important step toward ending the for-profit detention of immigrants. The vast majority of immigrants in California are held in for-profit detention facilities, with seven of the eight facilities used to detain immigrants run by private corporations. Nationally, approximately 80% of immigrants are held in for-profit facilities, and advocates have long argued that these corporations perpetuate policies that drive the exorbitant rates of detention for immigrants.
The court found that the provision of AB 32 that applied to civil detention is unconstitutional because it oversteps the state's roles and impacts the field of immigration, a domain exclusively reserved for the federal government. “California is not simply exercising its traditional police powers,” wrote 9th Circuit Judge Kenneth K. Lee, a Trump appointee, “but rather impeding federal immigration policy.” Advocates and the state of California have maintained that the bill was not about immigration but instead ending the operation of an industry that places profits over human lives.
The decision did not necessarily surprise many advocates, given that two of the three judges hearing the case were appointed by Trump. What was confounding for many was the multitude of factual errors in the majority’s written opinion. These inaccuracies raise questions about whether the judges fully understand the nature of ICE detention.
For example, the majority states, “The United States Immigration and Customs Enforcement (ICE) relies exclusively on private detention centers in California.” ICE, however, does not rely exclusively on private detention centers in California. In fact, ICE has an intergovernmental services agreement with Yuba County Jail that runs through 2099 and allows for the detention of hundreds of immigrants at that facility.
On page 20, the majority writes: “Here, AB 32 does not just ‘touch’ upon the area of immigration detention; it bulldozes over the federal government’s ability to detain immigrants by trying to ban all the current immigration detention facilities in California.” This characterization of AB 32 is wrong, as it is not a complete ban, given the existence of the Yuba facility. It is also important to note that AB 32 does not prevent ICE from building its own facilities and detaining individuals in California. It is unclear that the bill even prevents ICE from using contractors in those facilities so long as those contractors do not own and operate the facility. The court ignores these basic facts and instead characterizes California as overstepping its bounds.
The majority’s flawed understanding of ICE’s detention system was demonstrated later in the decision when they stated, “To avoid spending large sums of money on government-owned buildings that may remain vacant if immigration wanes, ICE relies only on privately operated detention facilities, including in California.” ICE does not rely only on privately run detention across the country or in California. ICE owns numerous facilities across the country but also, at times, houses detainees in other federal facilities operated by the U.S. Federal Bureau of Prisons, in addition to using local jails and intergovernmental services agreements, as previously mentioned.
This mischaracterization by the majority is troubling because it is an egregious error of fact and because it distorts ICE’s reliance on private operators. Even worse, this distortion is then used as a basis for their legal ruling in favor of the federal government and private companies. The majority paints private operators as indispensable to ICE when they are not.
What is missing from the opinion is any meaningful analysis of the horrid conditions that exist in privately owned and operated detention facilities and the extensive findings by various federal investigators that ICE’s detention oversight system is ineffective. Such an examination would provide clarity as to why a bill like AB 32 was designed to target both private prisons and civil detention facilities used by ICE.
The COVID-19 pandemic has exposed just how horrific conditions in ICE detention are and how little oversight the agency provides in facilities that are run by for-profit corporations. The decision to end the use of such facilities by a state like California should have been analyzed as a step towards protecting the health and safety of those in detention rather than encroaching on immigration enforcement.
In an interview with the L.A. Times, Jackie Gonzalez, policy director for Immigrant Defense Advocates, called the court’s ruling an overreach. “AB 32 was very clearly a bill aimed at protecting the health, safety, and welfare of individuals subjected to the abuses of private prison corporations,” she said. “Since its enactment, California has closed every private prison and immigration authorities, and the federal government has gone to pains to circumvent the law and expand detention.”
The issue of states' rights and immigration law is part of a complex and ever-growing area of law, with liberal states like California and Washington pushing pro-immigrant policies and states like Texas and Arizona seeking to weaponize state policies against immigrant communities. How these issues are settled is often ultimately dependent on political considerations, including those by judges with certain ideological leanings.
California Attorney General Rob Bonta, who authored AB 32 during his time in the California legislature, issued a statement vowing to continue to fight. “We will continue the fight to ensure the dignities and rights of everyone in California are protected,” he said. “As a Filipino American who was brought to this country as an infant, this fight is personal to me. While the road ahead may feel a little longer today, our work continues, and we will keep pushing forward.” The California Attorney General can challenge the ruling by seeking an appeal or rehearing in the coming weeks.
The ruling by the 9th Circuit is certainly disappointing, however the push to abolish the use of for-profit detention facilities, and in fact immigration detention as a whole remains alive and well both in California and across the country.