9th Circuit Rules Against California's Ban on Private Immigration Detention

The United States Ninth Circuit Court of Appeals has issued a new ruling on AB 32, a California law that banned the use of for-profit prisons, jails, and immigration detention facilities. The ruling by an 11-judge en banc panel of the court affirmed a three-judge panel’s ruling that the provision of AB 32 that banned the use of private detention facilities by U.S. Immigration and Customs Enforcement (ICE) violates the Constitution. The ruling is a setback for legislators who had supported the ban on private facilities as part of a broader campaign to protect the health and safety of California residents.

 The ruling is the latest decision in a legal battle that has gone on since 2020, which started after the private prison company Geo Group, Inc. (GEO) and the federal government sued California to stop enforcement of the legislation. GEO and the federal government had specifically asked for an injunction against the state of California from enforcing AB 32 against private facilities used by ICE. Immigrant Legal Defense, along with Immigrant Defense Advocates, the California Collaborative for Immigrant Justice, and the Center for Gender and Refugee Studies, filed an amicus brief in the case, asking the court to consider the bad faith conduct of private prisons in California. In 2020, a lower district court ruled that California had not violated the constitution in passing AB 32 and denied GEO the injunction it had sought, reasoning that the ban was focused on ensuring the health and safety of residents as opposed to interfering with the enforcement of immigration laws.

The ruling was appealed to the 9th circuit, with the panel of judges overruling the lower court's decision and sending the case back to be reconsidered by the district court. The ruling by the Ninth Circuit specifically found that AB 32 violated the “Supremacy Clause” of the Constitution, which prevents states from interfering with the federal government's activities. In an opinion written by Judge Jacqueline H. Nguyen, the court held that AB 32 “would override the federal government’s decision, pursuant to discretion conferred by Congress, to use private contractors to run its immigration detention facilities.”The majority held that California was interfering with the enforcement of federal laws by denying ICE the ability to use private facilities to house immigrants detained by the agency for deportation. Arguing that AB 32 “...would give California a “virtual power of review” over ICE’s detention decisions… and allow the “discretion of the federal officers [to] be exercised . . . only if the [state] approves.”

The court believes that the state went too far in effectuating this ban. “California cannot exert this level of control.” Advocates commenting on the decision disagreed with the majority, pointing out that the court’s decision focused almost exclusively on issues related to constitutional law and state interference but ignored the state’s interest in protecting health and safety by banning private facilities.  Hamid Yazdan Panah, with Immigrant Defense Advocates, told the L.A. Times, “What I think is really missing from this decision is any sort of recognition of the harm inflicted on people and families by these facilities.

”The ruling does not mean the fight for AB 32 is over. Instead, the Ninth Circuit is sending the case back to a district court to consider the request based on its ruling with respect to the constitutionality and to consider other factors in deciding whether to grant an injunction against the state of California. These factors include the public interest. Jackie Gonzalez, Immigrant Defense Advocates’ policy director, said any such analysis, if done correctly, should weigh in favor of the state’s ban. “There’s no doubt that a law that puts the lives and humanity of people over profits ... is in the public interest,” she said. Gonzalez also disagreed with the majority's decision, arguing that the enforcement of immigration laws does not necessarily mean the creation of private detention centers, citing the broad discretion ICE has to refer people to court without placing them in a detention facility.  In a statement to the San Francisco Chronicle, she noted, “Immigration laws in this country can be enforced without locking people up for profit.” A dissenting opinion, written by Chief Judge Mary H. Murguia and two other judges, disagreed with the majority and argued that the law did not directly regulate the federal government and, thus, should have been deemed constitutional.

The dissent argued the bill had originally been written to exercise the state’s police powers to protect health and safety. “The court took judicial notice of AB 32’s legislative history, which supports the conclusion that the state law responds to concerns about the health and welfare of detainees within the state’s borders. This legislative history included committee analysis referring to a 2016 Department of Justice report documenting higher rates of inmate-on-inmate and inmate-on-staff violence, as well as higher rates of use of force by staff, at private prisons.”It further noted that the bill was not intended to interfere with immigration enforcement.  “AB 32 may have an impact on federal immigration operations, but it is not an immigration law or a law regulating the federal government. Indeed, the law mentions neither immigration nor the federal government.”

The dissent closed by arguing that they did not believe the law was unconstitutional based on recent decisions by the Supreme Court. California Attorney General Rob Bonta wrote the bill during his time in the state legislature, told the L.A. Times that he was “deeply disappointed” with the ruling, and provided the following statement. “Assembly Bill 32 was enacted to protect the health and welfare of Californians and recognized the federal government’s own documented concerns with for-profit, private prisons and detention facilities. At the California Department of Justice, we’ll continue to do our part to stand up for the dignity and rights of everyone in our state.” Read more about AB 32 in prior ILD blogs below:

• AB 32 Ruling May Change Immigrant Detention Forever

• AB 32 and the Future of Immigration Detention in California

• 9th Circuit Rules Against AB 32, Advocates Vow to Fight On

A new bill in California targets solitary confinement, including in private immigration detention

Advocates in California have expressed their support for new legislation that challenges the use of solitary confinement in the state’s jails, prisons, and private immigration detention facilities. The bill, AB 2632, is called the California Mandela Act on Solitary Confinement and was authored by Asm. Chris Holden (Dem) representing the 41st California Assembly District. The legislation intends to limit the use of solitary confinement across all facilities and completely end the practice for specific populations, including people with disabilities, pregnant women, and certain age groups. The bill is partly inspired by the United Nation’s Nelson Mandela Rules, designed to protect the human rights of those in prisons worldwide. 

“Rehabilitation is lost once you put someone in a solitary confinement setting,” said Assemblymember Chris Holden in a press release announcing the bill.  “Our constitution prohibits torture, and I believe that the use of prolonged solitary is wrong, both morally and also concerning the rehabilitation of individuals in jails and prisons.” 

The legislation comes at a time when a growing number of states and countries have begun to reexamine whether the use of solitary confinement is justified in carceral settings. New York and Colorado passed bills in 2021 that accomplish many of the objectives set forth by the Mandela Act and mirror the Mandela Rules adopted by the United Nations General Assembly. This recent movement on the issue is centered on a growing consensus that solitary confinement constitutes torture. 

This consensus, based partly on a growing body of research and agreement among experts and advocates, is now emerging. On February 16th, the Washington Post’s Editorial Board published a piece entitled “Call solitary confinement what it is: Torture” and highlights the case of Dennis Wayne Hope, a man who has been held in solitary confinement in Texas for 27 years. Hope has a pending case asking the United States Supreme Court to decide whether his time in solitary violates the Eighth Amendment’s ban on cruel and unusual punishment.

Meanwhile, advocates in California believe that the state must take action to end the use of solitary, citing heartbreaking examples, including the shocking story of a woman who gave birth while alone at the Santa Rita jail, as well as examples of people held in solitary for decades.

In fact, California was once the state with the most individuals serving the longest periods of solitary confinement. Thanks to a concerted effort to organize by those inside these facilities and impact litigation by advocates, these numbers have been reduced. Yet, solitary confinement continues to be a major issue in the state. 

While a few states have passed legislation on the issue, California’s bill could be the first to include private immigration detention facilities used by ICE to detain immigrants. In 2020, a 74-year-old Korean man died after being held in solitary confinement at the Mesa Verde detention facility. The death sparked outrage among advocates who noted that the man’s age and medical history should have prevented him from ever being placed in solitary. 

In 2021, Carlos Murillo Vega filed suit against a private detention operator after he was held in solitary confinement for 14 months at the Imperial Regional Detention Facility. The facility was the subject of a 2020 report released by the Office of the Inspector General, citing the facility's abuse of solitary confinement against immigrants detained there. The report noted, “[W]e determined detainees were held in administrative segregation for prolonged periods of 22 to 23 hours a day, including two detainees who had been held in isolation for more than 300 days.”

Murillo provided a quote along with a number of other impacted individuals in a press release by advocates sponsoring AB 2632. After many years of advocacy, the press statement hailed the legislation as an important first step. “Today, the California Mandela Act builds on the decades of work done by detained individuals, activists, and organizers to shed light on the darkness that is solitary confinement and continue to move towards the ultimate goal of liberation for all.”

The bill is being sponsored by Immigrant Defense Advocates, NextGen California, Disability Rights California, Initiate Justice, California Collaborative for Immigrant Justice, and the Prison Law Office – whose staff attorney, Margot Mendelson, serves on the Board of Directors for Immigrant Legal Defense.  

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. 

Advocates Await Decision on Private ICE Facilities in California

Immigration advocates are awaiting a critical decision from the United States Court of Appeals for the Ninth Circuit (9th Circuit) regarding AB 32, a California law passed in 2019 that banned the use of private prisons and private civil detention facilities used by Immigration and Customs Enforcement (ICE). The law, the first of its kind in the nation, is being challenged by the private prison corporation, the GEO Group, Inc., and the federal government. 

In the fall of 2020, a district court in San Diego upheld AB 32, finding that California had the right to regulate the conditions of confinement for anyone detained within its borders, including those in federal immigration custody. The case was appealed to the 9th Circuit, with oral argument taking place on June 7th.

Now, advocates are anxiously awaiting a decision from the court regarding the fate of AB 32, which has broad implications for California and the nation.

Speaking to KQED, the bill’s author, Rob Bonta, now the California Attorney General, noted that the law could potentially influence other states. “This is a case with a lot of national significance,” Bonta said. “It was always the hope that others would replicate what California has done and also ban for-profit private prisons and detention centers, which are inhumane, unjust, unsafe, unfair, and which allow for literally Wall Street-owned corporations to profiteer on the backs of people.”

The bill is part of a lengthy battle between California and private prison companies who for years have played a cat-and-mouse game, with the state passing multiple bills to limit detention, while opponents claim that private prison companies have circumvented California law and exercised undue influence on local politics. 

Following the passage of AB 32, ICE and private prison companies in California signed unprecedented 15-year contracts just days before the bill was set to go into effect. The procurement of these contracts became the subject of a congressional letter probing whether the contracts were the product of collusion between the federal agency and private prison companies. 

Nearly all immigrants in detention in California are held in facilities owned and operated by three private detention companies: the GEO Group, CoreCivic, and Management & Training Corporation. If the courts uphold AB 32, these facilities may be forced to shut down, though the exact date of these closures is still at issue. 

Advocates believe that the bill could present a roadmap for other states to ban the use of private detention, a form of detention that many believe is problematic in theory and practice, driving policies of mass incarceration and harming those who are detained. More than 70% of immigrants nationwide are held in private detention facilities, and supporters of the bill believe it set off a series of copycat legislation. Washington, New Jersey, and Maryland have all passed legislation similar to AB 32. 

While AB 32 focuses on what states can do to push back on ICE detention, the Biden administration has come under fire over campaign promises to end the use of private immigration detention. Many in the immigrants’ rights community are particularly frustrated that the Biden administration’s Department of Justice chose to argue against AB 32, inheriting the case from the Trump administration and deciding to continue to oppose the law in court. 

In an interview with the LA Times, Hamid Yazdan Panah with Immigrant Defense Advocates (IDA) expressed dismay over the administration's decision to pursue the lawsuit and failure to take action against private prison companies. “The Biden administration’s callous disregard for the issue of immigration detention is embodied by their decision to side with private prison companies in the AB 32 litigation and defend profits over human lives. When confronted by activists on the issue of detention, Biden said, ‘Give me five days,’ which he later said was a joke. No one is laughing.”

IDA filed an amicus brief in the AB 32 hearing, along with Immigrant Legal Defense (ILD), the California Collaborative for Immigrant Justice (CCIJ), and the Center for Gender and Refugee Studies (CGRS). You can read the amicus brief here. 

Biden Administration Under Pressure To Do More On Detention

On May 20th, the Biden administration announced that it would end the use of two controversial detention facilities used by Immigration and Customs Enforcement (ICE) in Georgia and Massachusetts. The decision was issued to ICE in a memo by Homeland Security Secretary Alejandro Mayorkas, noting that the move was the “first step” in addressing conditions in immigrant detention facilities. The announcement came as President Joe Biden faced mounting pressure after immigration advocates demanded he fulfill campaign promises on immigration detention. 

After more than 100 days in office, the Biden administration had yet to live up to many of its immigration campaign promises or take any meaningful steps to reform or end detention. This left many advocates frustrated with the President's handling of the issue and his interaction with activists who confronted him. 

During an appearance in Georgia in late April, Biden was confronted by immigration advocates demanding that he take action to close detention facilities used to detain immigrants. Biden’s speech was meant to commemorate his first 100 days in office, instead it served as a stark reminder of his failed campaign promises, specifically on ending the operation of private immigrant detention facilities. The protestors demanded that Biden “end detention now” and also appears to have shouted out the “Community not Cages” campaign spearheaded by Detention Watch Network. 

Biden responded to the demands by attempting to appease the protestors. "I agree with you. I'm working on it, man," Biden said. "Give me another five days." Many immigrant advocates took this as a sign that the administration was working on a major announcement involving private detention facilities and would reveal a plan within the following five days. 

"There should be no private prisons, period. None. Period ... Private detention centers: They should not exist, and we are working to close all of them.” Biden added.

Far from providing a real timeline or clarity about forthcoming policy changes, Biden skirted accountability or what seems an earnest acknowledgment of the issue. Though Biden’s response appears to have provided a ray of hope for forthcoming policy changes, the President later stated that he was, in fact, “teasing” the protestors. 

When asked about it during a White House briefing, Biden responded, “I was teasing about — you know, I can’t get — I have to get it passed.  And that’s what I — but I do support eliminating funding to private prisons.”

Biden’s comments were particularly hypocritical given that his original campaign promise included ending the use of for-profit prisons and immigration detention facilities, leading to him signing executive orders to end the use of private prisons in January. Critics have pointed out that Biden’s order has done little to stem issues related to mass incarceration and will likely result in individuals being transferred from private facilities to public ones, as opposed to being released. It is estimated that only 14,000 individuals nationwide are held in private, for-profit federal prisons.

Immigration advocates have long demanded that Biden live up to his campaign promise to end the use of private detention in the context of immigration detention and, in fact, end the use of detention as a whole.

Biden’s response to his broken campaign promises is arguably incoherent and offensive. The President has the ability to act decisively on the issue of immigration detention and does not have to “get it passed” when deciding to end the use of private detention. 

The lack of action on immigration detention is particularly concerning given that ICE has recently ramped up enforcement, increasing the number of individuals in detention. According to Detention Watch, “ICE is reporting that there are 20,430 people in its custody as of 5/14, a nearly 33% increase since the start of the Biden administration when there were 15,415 people in ICE custody.”

As if to underscore just how far apart the administration's actions are from their campaign promises, the Biden administration also appears to be in talks with the notorious GEO Group to extend a contract for detention services in Florida. 

The move to close two of the most notorious detention facilities may be an indication that the administration understands the mounting pressure, but some advocates may view it as too little too late. 

While advocates await changes at the federal level, they are not sitting by idly. In addition to campaigns calling for action from Biden, activists have supported state-level policy pushes to ban the use of for-profit ICE detention facilities as one of the key strategies to abolish these types of facilities. These grassroots efforts to challenge the detention system may ultimately do more to end the industry than any President in the near future.