"Everything They Did, They Did At Night": This is How Sheriffs and Federal Agents Deport U.S. Citizens

Past as Prologue - Expect More US Citizens Deported
and more cover-ups

From CBP File on U.S. Citizen Miguel Silvestre, 2004

Superbowl Sunday, January 31, 1999.  Miguel Silvestre, 20, was in the drunk tank at the San Joaquin County Jail.  Three men in green uniforms entered Miguel's cell and asked some questions.  The conversation began in Spanish but quickly turned to English, Miguel's best language.  “I told them, ‘I’m from Stockton, California. I was born at the Dameron Hospital,’” eight miles up the road. The men also asked about his brothers.  Miguel let the guards know that they, too, were born in the United States, in Yuma, Arizona.  

“We’ll come back,” one said. 

A half hour later they returned.  “Grab your property.  You’re coming with us.”  The guards escorted him to a dull green and grey bus. Miguel, on parole, figured he and the four others in the jail were on their way to prison. 

About 20 minutes later Miguel made out that they were entering the Port of Stockton, a gritty 6.5 square mile hub for container ships, rail transport, and long-haul trucks and storage for the goods and fuel in transit.  The group entered a building.  One side had two cells, the other some guys at their desks in civilian cloths. One approached, a White man with grey hair.  “Where’s Miguel?” he asked. 

“I'm right here," Miguel said.    

“Oh, so you’re the troublemaker,” the man said. Miguel figured he'd heard about the fight with another inmate when he was being booked at the jail.  

“Give me your belt,” the man in civilian clothes ordered.  

“I can’t.  My pants will fall down.”  

The official punched Miguel in the stomach. Miguel handed over his belt.

In the holding cell someone tried giving Miguel a Bible.  Miguel asked why.  The Good Samaritan replied, “We’re leaving.  We’re being transferred.  Aren’t you scared?”  Shackled, his stomach aching from the hit and nausea from the hangover, Miguel demurred. No reason to be more scared of “somewhere else,” even prison, than a holding cell in the Port of Stockton with some old guy who punches you. 

Six days after he and his friends watched the Broncos beat the Falcons and his mom called 911 to report her son's alcohol and meth-fueled demands to borrow her car, Miguel, in a tan prison outfit, stripped of his drivers license and social security card, heard guards shouting to his group that had just disembarked a bus, "Keep walking!"  A few minutes later he had reached his final destination: Nogales, Mexico.

Route from Eloy Detention Center, AZ to Nogales, MX

"If you ask questions they ignore you or tell you to shut up," he said, explaining to me his confusion about the odyssey that took him to several jails, a military base with soldiers using gun scopes to scan the sky with red beams, his first plane flight ever, and being chemically sprayed in Eloy, AZ.  "Everything they did, they did at night,” he said.  

After arriving in Nogales it took Miguel a day to figure out he had been deported and two more days before a church worker told him the U.S. government could not do that to a U.S. citizen.  When Miguel tried to return, U.S. border patrol threw him back into Mexico, so he called his dad.  

"Are you lying to me?" his father asked. "They can't do that to a U.S. citizen," he added, underscoring his reluctance to abandon his construction work crew based on nonsense from his addict son.  Finally convinced, his father grabbed Miguel's birth certificate with the imprint from Miguel's newborn feet and drove his red GMC pickup down to Mexico. "He seen me and started crying," Miguel said, describing how his father reacted on encountering his son, 5' tall, filthy and wearing a woman's shirt he'd grabbed from the church donation pile.

***

The account above is from episodic interviews with Miguel over the last three years.  It tracks precisely the paperwork I finally obtained through Freedom of Information Act requests and litigation, though some records remain withheld in a dispute before a federal district court in Northern Illinois. 

The protocols ICE and its predecessor INS followed are identical to those in place today, and resemble dozens of other cases I've reviewed.  The details highlighted here reveal the inner workings of the deportation machine.  Specific records are reviewed so media and policymakers can see how the U.S. government illegally deports U.S. citizens.  Of note is that this is not a "mix-up," but a deliberate effort to deport someone the sheriffs and INS had clear evidence of U.S. citizenship at birth.  Prior personal contact and details in Miguel's criminal records, in addition to Miguel's own statements, left no doubt of his U.S. citizenship.  ICE's mid-February announcement of efforts to coordinate with sheriffs indicates we can expect more unlawful deportations, of U.S. citizens and noncitizens.      

1)  11 a.m., Feb. 1.  An INS officer types up the I-213 that invented Miguel's fake bio.  Miguel is brought from jail to CBP building in Port of Stockton.

From Miguel's I-213, 1999 

Everything on Miguel's supposed origins from Mexico is fiction, as is the claim that Miguel was arrested for a DUI.  (The criminal arrest record INS attached makes no mention of any DUI arrest at any time. Miguel may have been a menace to his family, but he was not driving when the county sheriff took him into custody.)

If anyone were to spend a few minutes looking at this record, the fraudulent paperwork used to kidnap Miguel would be obvious: the biographical information on his recent criminal arrests in May, 1998, November 1998, and January 16, 1999 for possession of drugs and carrying a firearm, made it obvious that Miguel was quite familiar to the local sheriffs, who were knowledgeable of his U.S. citizenship as well, a fact that appears on their prior records on him. 

If Miguel really were from Mexico, then why was he on probation and not deported after his gun and meth possession prison time in 1998?  And why didn't CBP note the records showed he was born and raised in San Joaquin County?

Miguel might have been the world's worst son, but he was quite obviously the Stockton-born-and-bred child of the Modesto-resident mother who had called 911, not some Mexican guy from Guerrero who happened to share his same name, birth date, and parents but had shown up in the United States just two weeks earlier for agricultural work.

2)  4:18 p.m. CBP, Port of Stockton, Arrest Warrant 

 click to enlarge

In the afternoon of February 1, 1999, Port Agent in Charge Dale Johnson had created an arrest record, Exhibit 1 for Miguel's sham administrative hearing inside the Eloy, Arizona detention facility run by the Immigration and Naturalization Service (INS).  Johnson's report stated Miguel had first entered the U.S. two weeks earlier and was agricultural labor.  In the space for "Currently Residing" Johnson wrote, "FAILED TO PROVIDE."  

All of this was Johnson's creative writing about a guy in a nearby holding cell who was entirely clueless as to the fact that INS was effecting Miguel's abduction. 

3)  Feb. 1, 1999, Port of Stockton, Notice to Appear, created by Dale Johnson

 

 Notice to Appear - Has "Ds" in left margin denying he is a national and citizen of Mexico
Created by CBP Officer Dale Johnson, Feb. 1, 1999 (click to enlarge)

4)   DOJ Attorney/"Immigration Judge" Notes Indicate Claim of US Citizenship

Notes of John Zastrow, IJ who deported other US citizens, including Johann Francis

Zastrow memorializes Miguel's claim to U.S. citizenship and then indicates Miguel said he was born in Mexico.  While in some cases, U.S. citizens may have acquired fake birth certificates in Mexico for purposes of attending public schools, this was never the case for Miguel.  Copious documentation proves Miguel was born and raised in California. 

Zastrow provides no explanation as to why Miguel would claim U.S. citizenship and then assert he was born in Mexico. 

The hearing was on the morning of Friday, February 5, 1999, the culmination of several days of confusing travel and attacks by INS agents annoyed by Miguel's yelling at them from his cell in Eloy, AZ.  He demanded to know what was happening, and screamed obscene insults at the guards.  In the wee morning hours guards cajoled him to approach the meal tray slot, then launched a chemical spray in his direction through the opening and charged his cell.  

After roughing him up, guards brought Miguel to the showers, to rinse out the spray from his eyes and elsewhere, the result of which was to saturate his genitals with the chemicals and cause further pain, the treatment for which was shots of tranquilizers, Miguel told me.  

A few hours later Miguel, groggy and disoriented, was dragged out of his cell into an immigration court room inside Eloy, a fact of which he was not aware.  At the time, his best guess as to what was happening was that he was being arraigned for a parole violation.

4)   What about the Mandatory Recordings of Immigration Hearings?

EOIR in 1999 and in 2004 was obligated to record all removal hearings, pursuant to 8 CFR 1240.9. Any discrepancies between Zastrow's claims and Miguel's could be easily resolved if we had these cassettes.  After I filed a lawsuit, EOIR still withheld the audio recordings and other EOIR records responsive to my request.   (I know this because USCIS produced EOIR records that EOIR withheld from me.) 

Executive Office of Immigration:  Oops! No Audio for Either Hearing (click to enlarge)

If records the government is obligated to retain are damaged, the agency is required to submit a report on this to the National Archives and Records Administration.  No such report exists. 

5)  Miguel Files Complaint, July, 1999.   A few months after his February ordeal, Miguel filed a complaint with the DOJ, pursuant to the Federal Torts Claims Act.   

FTCA Complaint

6) INS Doubles Down on Agency Lies and Reliance on Lies

INS Response to Complaint - click to enlarge

The INS analysis relies exclusively on false information in the charging documents.  The author fails to note that Silvestre asserted U.S. citizenship in the hearing before Zastrow, and claims that Miguel's signatures indicating receipt of filings is proof that Miguel himself stated he was a citizen of Mexico who entered the U.S. in January, 1999, as though signing a traffic ticket to indicate receipt were an acknoweldgement of guilt.     

7)  Second Detainer Issued (2002) - Agents Note Miguel's Assertion of US Citizenship

The paperwork indicates a new detainer was created on February 22, 2002 and evaluated while Miguel was in the custody of the Modesto Police, including his assertion of U.S. citizenship.  

I-213, Feb. 22, 2002

8)  INS already knew Miguel was a US citizen, and born in Stockton, California

Database Search 2-21-2002 Shows Miguel born in California, US Citizen

Information on right: "Citizenship United States."

Further, in response to the INS request, Modesto Police confirmed that the fingerprints of the guy they were trying to deport matched the fingerprints and other biographical information for the U.S. citizen Miguel Guzman-Silvestre.  

INS Receives Confirmation Miguel a U.S. Citizen, 2002, click to enlarge

 

9) Second Detainer Dropped (2002) - "Mexican" Citizenship Not Corrected

I-213 "Drop Hold," 3-9-2002

On March 9, 2002, INS dropped the detainer of a guy they knew was born Stockton.  However, no one bothered to correct the INS database to indicate that Miguel was born in the United States, much less open an investigation into the events of 1999 producing the first fraudulent I-213.  It was obvious to anyone reviewing this paperwork that something very bad had happened in 1999, but no one followed up to figure out just what had occurred, much less to correct the error.

 9)  Third Detainer in San Luis, AZ, 2004
In 2004, Miguel was living in Arizona and accompanied a friend to Mexico for the weekend.  

San Luis, POE, photo from Yuma Sun New

When he tried to return, CBP saw the prior deportation and arrested him, disregarding the findings from 2002 to drop the detainer hold.  

CBP notes Miguel's Birth Certificate and Calif. DL, Proof that BC is Miguel's,
Makes Error on Date of Entry, click to enlarge

Here's how Miguel describes what happened:

The guard said, "I can't let you go into US. You've got to go back into Mexico.  You need someone to send documentation.  I need a birth certificate."  I called my mother.  She decided to come down to Arizona, to San Luis.  Me, her, and my friend's mom wanted to take me somewhere to apply for a passport.  But I was feeling sick.  They left and I stayed in San Luis, Mexico.  "When you feel better, you go back into Yuma and fix things there," they told me.  

A day or two I felt better.   Mom called me.  "You're going to walk through there.  Your uncle will be right behind you." I went through.  I started walking. As I came, they asked me a question.  "Where were you born?" 

"Stockton, California."  I gave him that right away.   He arrested me.  I'm looking at my uncle.  "Aren't you going to do something?" 

He took me into the holding cell.  They took all my information.  I gave them all my documents. "You're committing fraud," they said, "You're trying to represent somebody that aint you."  They held me  6-8 hours.  

CBP has an interview template.  

Q.  Why did you leave your homeland or country of residence?"  A. "Because they said I had to fix my deportation in Arizona." 

Q.  Do you have any fear or concern about being returned to your home country or being removed from the United States?  A.  I would just be pissed off being returned to a country where I wasn't born.  

Q.  Would you be harmed if you returned to your home country or country of last residence. A. No, but I have no reason [sic] over there.   

Q.  Do you have any question or is there anything else you would like to add?  A.  Why does the paper work I see around me say I am a Mexican citizen? 

Interview in Bizarroland, March 8, 2004, click to enlarge

The Alien Who is a Citizen
Miguel's records are of a piece with a pattern: a deported U.S. citizen who produces records documenting U.S. citizenship elicits accusations of false personation of a U.S. citizen, as the San Luis, AZ charged Miguel in March, 2004.  

I-213, 2004

I-860 Form, 2004

I-860 Form 

Miguel couldn't win.  If he didn't present documents he would not be allowed to return to his home.  But when he did, CBP wrote:

You are ineligible for admission to the United States ... You are an alien who, at the time of your application for admission at the San Luis, Arizona Port of Entry on March 7, 2004, ... falsely represented yourself to be a United States citizen ... [But] you are an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or sought to procure of has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act, to wit: You presented a California birth certificate in the name of Miguel Silvestre, born in Stockton, California on [PII] 1978 and attempted to assume that person's identity in order to be admitted to the United States.

The disposition on the report on March 8, said "expedited removal."  Typically that means immediate deportation, perhaps directly or perhaps through the detained immigration court docket.  Instead, CBP sent Miguel to the Yuma County Jail, to face criminal charges 

10)  Yuma, AZ Federal Court

Of his 2004 arrest, Miguel said,

Then they sent me to Yuma, Arizona, to the county jail.  I was there a day or two. Then they took me to the immigration court. They  took me there with my mother.  The judge said, "What's your name?" Then it was over.  "That's it?"

March 9, 2004 Indictment, 8 USC 1326, 8 USC 1325, click to enlarge

 

I said, "What's going on?" No one said anything. They took me out and sent me back to the county jail.  "What just happened?" I asked.  The guards said, "You've been to Tijuana lately."  I told them, "I've never stepped foot in Tijuana." 

They kept me there three days.  Then they picked me up again and took me to Florence [Arizona].  

 

I  pointed out that the paperwork in Yuma was actually for federal court, that he was being charged with a felony of Illegal Reentry and the misdemeanor of Illegal Entry.  If he had been convicted, the judge would have sentenced him to several years in prison, and THEN he would be put into removal proceedings.  I asked Miguel if he showed anyone evidence of his U.S. citizenship at that the hearing.  Miguel's aunt recalls there were a few other inmates and their families in the court room.  Miguel's mother showed the bailiff and then the judge all the paperwork documenting Miguel's U.S. citizenship.  Miguel does not recall any formal statement from the judge, just being taken back to then being sent to Florence. 

Without notice to Miguel, the next day the federal court dismissed the charges. 

March 10, 2004, Charges Dismissed, click to enlarge

The charges were dismissed, presumably based on the evidence of Miguel's U.S. citizenship, and yet Miguel remained in custody in Yuma until he was transferred a few days later to an ICE facility in Florence, Arizona. 

  

11)  Florence, Arizona, Florence Immigrant and Refugee Rights Project files appearance

Miguel and his mom go to Florence.  Miguel is still in custody.  His mother needs to drive from where she was staying with relatives.  

On March 16, 2004, Miguel's mother files an affidavit and the rest of Miguel's records documenting his birth and school attendance in California with the immigration court.

Mom Swears Miguel Born in the Stockton, California, click to enlarge

On March 23, 2004, the immigration court at the Florence Detention Center affirmed Miguel's claim to U.S. citizenship.

2004 Order Finding Miguel a US Citizen,
Terminating Removal Proceedings in Florence, AZ

The next day, ICE filed a motion indicating that the NTA of February 25, 2004 was "improvidently issued" and moved to terminate.  

ICE Moves to Terminate Without Prejudice

However, ICE cannot retract inaccurate allegations without creating new errors. First, ICE's Notice to Appear was created on March 18, 2004, two days after his mother submitted the paperwork documenting his U.S. citizenship, not February 25, a date before Miguel was apprehended.  Further, Miguel is never not going to be a U.S. citizen.  Why is ICE moving to dismiss without prejudice?  Shouldn't the government recognize a massive prejudice against the possibility of ever again charging Miguel with being a noncitizen? 

Interview with CBP official Dale Johnson

On February 1, 1999, CBP Officer Johnson created a false report filed with the immigration court a few days later in Florence, Arizona.  A few days ago I spoke with him by phone.  I asked him how it was possible for him to write this false narrative leading to the deportation of a U.S. citizen. "It wouldn’t have happened," he replied.

I told him I had the paperwork right in front of me, including his name and signature on a document that demonstrably false information. Next was the CYA.  "It wasn't me. He would have gone to a deportation office. They would have brought him to El Centro," suggesting that most of the individuals who ran through his office were bussed to Southern California, not Arizona.  

I pointed out that no one could be sent anywhere in INS custody without someone in Stockton first completing the paperwork, and that it turned out he was the person who did this, in response to the I-213 created a few hours earlier.  (The names on that are redacted.)  

"Sometimes they would claim US citizenship so they could go back to Mexico," he said, trying to account for why he would have received an I-213 with inaccurate statements. 

I told him this made no sense.  "You sound like you are someone who hates ICE," he replied, adding that he did not want to continue the conversation.  I offered to send him the records in case he wanted to review them.  He declined and said he no longer wished to speak with me.

Conclusions

1)  Nothing in the protocols relied on by any of these agencies has changed since 2004. 

2)  Many of the people who deported Miguel on numerous occasions knew he was a U.S. citizen.

3)  Many of the government officials who created or reviewed these records must have known that the original 1999 I-213 arrest sheet was inaccurate and likely fraudulent. In 2002 this impeded a new I-213, but the 2004 CBP and ICE officials disregarded this.

4)  No one has done anything to protect Miguel from enduring similar treatment at a later date. 

Miguel is no choir boy.  But he has never kidnapped anyone.  He has never falsely imprisoned anyone.  And he has never assaulted anyone with a chemical spray.   I have numerous other accounts of U.S. citizens detained and deported, accounts that ICE is doing its utmost to delay or refuse to produce.  They know that if these facts go before our courts, the plenary power afforded Congress and law enforcement when it comes to deportation policy will be rescinded.  The plenary power to disregard the Constitutional rights of noncitizens is wrong on its merits, but it extends only to noncitizens.  Over a century of evidence that the removal of due process protections for noncitizens entails the kidnapping and false imprisonment of U.S. citizens removes these prerogatives.  (Working on the law review article, but in light of interest by various parties, I wanted to share these details in the meantime.) 

Many thanks to FOIA attorney Nicolette Glazer and Deportation Research Clinic research assistants who have pitched in on requests and litigation analyses: Addie Fleming, Caitlin Jimmar, Gabriel Sanchez, and Juliana Zitron.  Thanks also for support from the the Buffett Institute for Global Affairs and the Political Science Department at Northwestern University. A special thanks to Miguel, for his patience, persistence, and his honesty. If you are a lawyer (or a California state prosecutor) and want to speak further with Miguel, please let me know. jacqueline-stevens AT northwestern. edu 

Please consider donating to support our work. 

Northwestern AAUP Executive Committee Calls on Northwestern to Rollback Propaganda and Support Education

From Northwestern Email sent to Students Feb. 20, 2025
click to enlarge

 

NU AAUP Executive Committe Responds to Assault on Higher Education 
This year I am honored to serve as the president of the Northwestern University chapter of the American Association of University Professors.  In that capacity, I worked with my colleagues to draft an op-ed for the Daily Northwestern and a petition opposing Northwestern's support for the Department of Education's controversial definition of antisemitism.  We also explained our concerns about NU's quiet obedience to (other) autocrats, including orders to report international students for their exercise of the right to free speech.  

Please consider reading, signing, and also circulating.  (The petition includes links to government and other documents on the Trump administration's efforts to destroy higher education the student paper would not publish due to hacking concerns.)

Two days after our letter was published, Northwestern's Big Brother emitted its latest directive:  Factually accurate criticism of Israel's apartheid policies will be construed as "antisemitic" and a violation of Title VI.  "Horrifying!" as one Jewish scholar of the catastrophe wrote after I shared a screenshot from the new mandatory indoctrination module. [Update: shortly thereafter NU rolled out its new IHRA definition of antisemitism.]

Examples on the slide providing so-called examples of antisemitism include: "The Zionists have used the Holocaust as a weapon to deny the rights of the Palestinians and cover up the crimes of Israel." Well, this is just a fact, for which Norman Finkelstein sacrificed his career.  Are facts, including those in Beyond Chutzpah: On the Misuse of Antisemitism and the Abuse of History (UC Berkeley, 2005) and The Holocaust Industry now antisemitic?  

Of course some may disagree with the emphases or certain inferences of Finkelstein and other critics of Israel, including Professor Lila Corwin Berman, The American Jewish Philanthropic Complex: The History of a Multibillion Dollar Institution and, of course, The Israel Lobby and U.S. Foreign Policy by political scientists John Mearsheimer and Steven Walt.  But that does not mean analyses and positions antagonistic to Israel's domestic and foreign policies toward non-Jews are antisemitic, much less amenable to enforcement under Title VI or any other law compatible with the U.S. Constitution.  

Northwestern has spent tens of millions on lawsuits and settlements precipitated by greed and poor judgment about financial aid, the football program, and our retirement fund management.  Yet when it comes to low fruit First Amendment litigation to defend the core mission of education, Northwestern's legal counsel is nowhere to be found.

I personally have interviewed a survivor whose letter narrating an example of Latvian collaboration with the Einsatzgruppen was rewritten by an outfit in London hired by the Israeli government to collect accounts of war crimes for purposes of obtaining reparations from the German government.  When the for-hire organization received accounts that did not have phrases like "I saw with my own eyes..." they rewrote them, embellished the content to make it more grotesque, and submitted them to Israel per the contract, without revealing the fraudulent alterations either to the Israeli partner or the survivors.  

(The Latvian survivor had resettled in NYC and responded to an ad in a Yiddish newspaper soliciting accounts of encounters with the Nazis; he was stunned when I shared the version published in a book by former Mossad agents to justify their 1965 assassination of a Latvian war criminal in Uruguay.) 

My own assessment: Latvian aviation hero Herbert Cukurs was a war criminal AND the accounts Mossad used to justify his assassination were invented.  (Like OJ: Simpson killed Nicole AND the police planted evidence.)  

The London inventions ended up in an archive in Yad Vashem later digitized and sold to libraries.  When I reviewed with the director of a Yiddish archive the evidence that the testimonies were fake her response was not that of defensive incredulity I anticipated.  "We paid $10,000 for access to these," she said, as she shook her head.  This was in 2006.  I then learned that insiders knowledgeable about the witness testimonies also had questioned the authenticity of this collection, but had not produced the evidence I had.  

Here's another statement that our fearless anonymous "administration" says could get one punished: "First and foremost, I condemn the conflation of Zionism a political identity, and Judaism, a religious identity.  The state of Israel has attempted to conflate both in order to garner support for its apartheid policies."  Leaving aside disputes about how to interpret an Abrahamic religion specific to the Israelites-- no "Jews" in the Hebrew Bible -- First Amendment jurisprudence in the United States does not second-guess disparate interpretations groups and individuals have as to what is and is not content required by religious doctrine, including whether a religion does or does not require allegiance to the notion of a nation-state as integral to the Jewish religion.

To the extent the government adopts a definition of antisemitism to the exclusion of those preferred by anti-Zionist Jewish groups and individuals, the government is violating both the Establishment Clause and the Free Exercise Clause, not to mention good old fashioned freedom of speech:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In short, the founders wanted religious organizations and individuals of conscience to decide themselves as to their group's parameters, not Donald Trump or reckless ideologues at AIPAC or other pro-Israel organizations.

That said, the EO administration cites for its biased training does not obligate the use of the wrong-headed examples in the NU module.  I've heard, but cannot document, that the group behind these slides is the Jewish United Fund, supported by "former General Dynamics chair and megadonor Lester Crown," a Northwestern trustee and donor for Northwestern's Israel Innovation Project.  The IIP is run by a director appointed without a national search and who thanks Lester Crown personally for the endeavor.  

Also, those who have reviewed the module say it is hugely biased toward antisemitism, which reflects the recent Title VI mandate and disregards the statute's larger purpose, which would require equal time for bias training on all groups that might face discrimination based on national origins, including students from China and Iran, who face huge obstacles to education because of U.S. government policies, some of which are mere rules or regulations that conflict with the Title VI statute, or so it seems.   

What does all this mean?  
Would Hannah Arendt, who cut short her teaching gig at Northwestern in 1961 to cover the Adolf Eichman trial in Israel for The New Yorker, be charged by administration with bias? 

click to enlarge, from The Jewish Writings

In "Zionism Reconsidered" (1946), an essay exploring the nuanced challenges facing Jews in the wake of the catastrophe, and expressing concerns about a Jewish state in a region previously controlled by the Ottoman Empire and then colonized by Britain, Arendt expresses principled and practical objections to the vision of Theodor Herzl.  Here and in Eichmann in Jerusalem, she attacks the ressentiment driving the agenda, especially the collaboration with Nazis such as Albert Eichmann, with whom ghetto leaders helped organize the transfer of Jews from Europe to Palestine.  (At one point Arendt calls the Zionist vision of an exclusively Jewish nation-state an ambition once viewed by most Jewish intellectuals as an objective of the "feeble-minded.") 

Arendt, herself a refugee from Germany and active in some Zionist refugee efforts during WWII, understands Jewish fears and preferences, but anticipates the disastrous political consequences of pursuing a Jewish nation-state, including the apartheid policies that would ensue and the antagonisms this would entail.  (That said, Arendt endorses the intergenerational attachments of the nation, a widely held sentimental blind spot to the nation's harms my own work rejects, for Israel and every other state-nation.  She and many others want nations without nationalism, which is like wanting to eat only dessert and avoid diabetes.)  

When I teach Arendt's essays on Zionism, will administration charge me with antisemitic bias?  I guess I'll find out.  Meanwhile, please do consider reviewing and supporting our petition.  (After hearing from our anxious colleagues, especially those who who are not tenured, we added an option for indicating only your affiliation and not your name.)     

Federal District Court Judge Matthew Kennelly to ICE: No More Bites at the Apple

 

 

 

                                                                 source: Tasting Table

 

Federal Court Orders ICE Release 13,000 Pages: ICE "Plain Wrong," Redactions "Egregious" 

 

 

 

 

 

In retaliation for revealing misconduct by Immigration and Customs Enforcement (ICE) and the private prison industry, ICE in recent years often disregards my requests under the Freedom of Information Act (FOIA) and forces me to go to court to obtain any responsive records.  

In the past, a request for a U.S. citizen's "A"-file ("A" for Alien) would yield several hundred pages and any litigation would be over redactions or pages that were withheld.  Now, even AFTER I go to court, ICE will take months or years before releasing just one to four pages from a computer print-out, thus forcing me to respond to round after round of their motions for summary judgment.

The result is stale information, and a diversion of my time away from writing and research and into tracking and drafting declarations revealing ICE's idiocies.  

A recent order revealed I was not the only one frustrated by ICE's Prozess -- the word from which Kafka's "The Trial" is translated.  

Northern Illinois District Court Judge Matthew Kennelly also has had enough. Here are some excerpts from his order, castigating ICE's declarant Fernando Pineiro for his vague and inaccurate statements:  

It is apparent from the way Pineiro worded this that his declaration does not contain a full list of program offices where ICE maintains its records, nor does it explain why he listed only four program offices as potential locations where responsive records may be found. Stevens v. Health and Human Services, et al., 1:22-cv-05072, ECF 121 at 11. 

Judge Kennelly faults Pineiro for his lack of explanation as to the locations searched, ICE redactions of information from publicly available federal court cases, as well as errors, including misstating the number of columns in his own Vaughn Index:

[T]he information he references as forthcoming ("described below") is nowhere to be found. Pineiro does describe the specific search terms used and databases searched, but he does not provide an explanation regarding why "no other record system was likely to produce responsive documents" related to prison grievances, commissary account data, and work program participation.  [Webster's Dictionary] defin[es] "explain" as "to make known; to make plain or understanding; to give the reason for or cause of; or to show the logical development or relationship of"). In essence, ICE is asking the Court to take Pineiro's bottom-line word for it without the benefit of any reasoning or justification. Ibid at 15, emphasis in original.

Judge Kennelly finds, 

T]hough ICE is afforded the presumption of good faith, Stevens has supplied the requisite evidence to 'raise substantial doubt [about the adequacy of the search]' byproviding her "well defined requests" and pointing to "positive indications of overlooked materials." See Rubman, 800 F.3d at 387. In particular, Stevens contends that there are over 10,000 pages of documents that ICE identified as potentially responsive but that were withheld without a sufficient explanation or description of which program office they came from, or even to which request they relate. Based on the record, no reasonable factfinder could find that ICE performed its search reasonably and in good faith. This is not a question of whether ICE "might have additional, unidentified responsive documents in its possession." Id. Rather, ICE has affirmed that there are over 10,000 pages of potentially responsive documents found by the various program offices, yet it has not sufficiently explained how it determined which of these pages to produce "to allow the . . . court to determine if the search was adequate." Oglesby, 920 F.2d at 68.  Ibid at 16. 

ICE filed a motion for stay.  Today Judge Kennelly denied the motion without prejudice.  ICE likely will file a new motion to preserve the right to file an appeal.  At that point, ICE also will file a new motion for stay.  Meanwhile, other records need to be released before January 30, 2025. 

U.S. Citizen Kidnapped and Deported
The records I requested include those of U.S. citizens ICE detained or deported, including a Stockton-born U.S. citizen then-INS basically kidnapped.  The information from Miguel's narrative and records I obtained through this litigation reveal the San Joaquin County jail turned Miguel over to INS agents, who brought him to a mobile CBP office in the Port of Stockton commercial rail yard. An agent there filled out a bogus arrest report asserting Miguel first entered two weeks earlier.  The then 19 year-old had no idea where he was being taken.  "Everything they did, they did at night," Miguel told me, including the chemical spray and shots of tranquilizers in an Arizona INS facility.  Six days after being kidnapped he was walking over a bridge into Mexico.  This was in 1999.  He "snuck" back in and was put into deportation proceedings again in 2004. 

Miguel reached out to me because he is terrified of this happening again.  Alas, his worries are not groundless.  ICE knows that the entire deportation machine will fall apart if the evidence of its wrongful deportation of U.S. citizens is judicially recognized.  To delay the inevitable, ICE now regularly challenges findings by immigration judges terminating deportations based on evidence of U.S. citizenship.  If Miguel is encountered by law enforcement and they see he was deported, they might well re-arrest him and try again, despite his contemporaneous birth certificate from Stockton, CA. 

With deportation protocols, past is prologue.  

As political scientist Raul Hilberg explained about the Nazis, the stereotype of the Einsatzgruppen following legal orders is a canard.   The deportation regiments were  systematic only in their protocols, while their interpretations of statutes were improvisational.* 

*I am referencing in particular the period of 1933 to 1940, before the mass killings in Poland and Latvia; I do not believe anything like death camps or mass shootings in remote forests is possible in the United States.  I do believe the nativism and national security rhetoric to which the Supreme Court regularly defers entails abandoning the rule of law, and is unconstitutional as well as harmful to most Americans. 

The records I have been obtaining for 15 years and am seeking now indicate that the U.S. government cannot abandon due process for deportations and avoid deporting U.S. citizens.   No wonder ICE refuses to follow the FOIA. 

Thanks as ever to attorney Nicolette Glazer and to Northwestern University Buffett Institute Deportation Research Clinic research assistants Addie Fleming, Caitlin Jimmar, Kendall McKay, Gabriel Sanchez, and Julianna Zitron for carefully combing through ICE's productions and flagging missing information crucial to this litigation. 

Butler County Jail and ICE Violate Labor and Immigration Laws, Line Official Claims Coffee Packets for Work are "Monetary"

 

 

In 2019 I published records on the work program for those in custody under immigration laws at the Butler County, Ohio jail, as well as my interview with the warden.  The gist is that the program was paying people for work with coffee packets.  The sherriff expressed his view that it was fine for him to employ the same protocols for people in custody under criminal laws for people in ICE custody. 

In reporting on this, I contacted ICE's public relations office.  When they failed to answer my questions about the discrepancies between the programs and the law, I filed an additional FOIA request.

Five years after failing to provide responsive records and four years into litigation, ICE yesterday released some damning emails - 169 pp.).  

6:04 p.m.  

The highlights: ICE confirms the Butler County program was not in compliance; the inspection group erroneously claimed the jail did not have a work program and omitted any evaluation of the unlawful practices; and other jails also were and likely are still out of compliance.

6:12 p.m. (DSM = Detention Service Manager, supposed to monitor compliance)

I'll fill in the details later but wanted to make this available asap.  It is further evidence that the compliance reports are garbage and that ICE knows this.  The good news is that ICE did finally release information underscoring the agency's disrespect for the rule of law.  The bad news is that sitting on it so long -- part of a pattern and practice of violating the FOIA -- deprives the public of real-time accountability, though it may still be quite useful for suing Butler and other jails that violated their contracts and the law.

It also raises more questions about what is going with the DOJ's amicus brief supporting the work program protocols ICE officials internally affirmed to be unlawful.  

Biden Administration Backs GEO's Unlawful Labor Practices

 

Merrick Garland's DOJ Supports Firms Violating Labor Laws 

                                           source: Tom Willimas/CQ, Roll Call, 2021

The Biden administration's Department of Justice (DOJ) last month filed an historic amicus brief supporting private prisons paying $1 a day for labor to folks who are in custody under immigration laws, legally or otherwise, including U.S. citizens. The filing means DOJ is taking the side of federal contractors found to have violated state and federal labor laws and disregarding rulings by state and federal judges, including Reagan-appointee Judge Robert Bryan in Tacoma, Washington. 

DOJ's filing of February 21, 2024 assists GEO in appealing a 2021 federal jury's award to its Tacoma detained workers of $17.3 million in backpay and an additional $5.9 million in "unjust enrichment" Judge Bryan ordered GEO to disgorge to the State of Washington.  (In 2022, GEO was ordered to pay an additional $14.3 million in attorney fees.)

The DOJ's undermotivated gift to scofflaw GEO Corporation and other defendants also contravenes findings and analyses of federal agencies, including those operating under President Donald Trump, when Immigration and Customs Enforcement (ICE) rebuffed GEO's entreaties to assist and reimburse GEO for its defense.  

Attorney General Merrick Garland's DOJ is asking courts to support a private corporation paying recently arrived migrants, as well as long-term legal residents and U.S. citizens, one dollar a day for work to meet the firm's contractual commitments to the federal government, instead of the legally mandated wages of the Service Contract Act.  (The recent ploy to evade wage acts is in keeping with the Biden administration's bizarre contract language from 2021.)  

And yes, the filing means the U.S. government is on record supporting paying U.S. citizens one dollar/day.  Indeed, it was U.S. citizen Mark Lyttle's 2009 efforts to recoup the $32 owed him by Corrections Corporation of American (now CoreCivic) that first put the practice on my radar.  Thousands of pages I obtained through litigation under the Freedom of Information Act, and reported on by the New York Times in 2014, proved the program was both unlawful and widespread, as was forcing those detained under immigration laws to work for no wages at all, again, regardless of their actual legal status or the fact the firms were obligated by federal acquisition rules, not to mention federal labor laws.) 

Background
Congress in 1950, to come into compliance with the Geneva Convention for Prisoners of War, passed a law authorizing federal immigration centers, then mostly non-carceral residential facilities such as Ellis Island, to pay people an allowance for work performed, "at such rate as may be specified from time to time in the appropriation Act involved."  Shortly after the policy was enacted, Ellis Island closed and there was no long-term detention for people in immigration proceedings until 1981.  

The last time Congress set the work program rate was in 1978.  The rate was no more than $1/day, in an appropriation Act that expired on September 30, 1979. (GEO and DOJ briefs misstate the year of enactment as 1979.)

People in ICE custody are there to guarantee they do not flee prior to their hearings or removal from the United States, not as punishment.  The work programs wardens use for people held in criminal custody is a punitive measure; paying people in civil custody one dollar/day is no more lawful than paying elderly citizens one dollar/day to cook, clean, or buff floors in an assisted living facility.  And tons of case law applies minimum wage protections to those who lack federal authorization to work, a means of maintaining a fair labor market and not undercutting legal wages.

In addition, people in criminal custody are there pursuant to Sixth Amendment protections absent for those ICE custody -- hence the large numbers of U.S. citizens and others with lawful status ICE and often immigration "judges" (DOJ attorneys in black robes) miss. (Briefing on both sides often omits this crucial distinction, important for differentiating ICE custody from pre- and post-conviction criminal custody.)  This is why the Supreme Court in 1896 ruled forced labor unconstitutional for those held under immigration laws. 

The Rule of Law Applies to GEO and ICE
Here's how Federal District Court Judge Robert Bryan, a Reagan appointee, explained GEO's obligations to adhere to wage laws and rejected GEO's whining about discrimination:

The MWA [Washington Minimum Wage Act] is a neutral law of general application and is being imposed on GEO on a “basis unrelated to [GEO’s] status as a Government contractor.” North Dakota, v. U.S., 495 U.S.
6 423, 438 (1990). The MWA is imposed generally on employers in Washington, unrelated to a status as a contractor with federal governmental entities. Indeed, the federal government and GEO contemplated (or should have contemplated) application of the MWA in their contracts.  The 2009 Contract and 2015 Contract between GEO and the federal government require that GEO comply with all “applicable federal, state and local labor laws.” [Cit. omitted] Those contracts further provide that “[s]hould a conflict exist between any of these standards, the most stringent shall apply.”

In other words, GEO's business of holding people while their civil immigration or citizenship claims are adjudicated provides the firm no more legal authority to violate labor laws than it would for any other employer or federal contractor that might assert it should be exempt from violating the state's labor laws.  

The fact that those employed are allegedly not authorized for legal employment is irrelevant to MWA.  And again, many of those detained have work authorization.

A few months after Judge Bryan's order, a federal jury in Tacoma agreed that GEO's work program requirements and the work testified to by the plaintiffs meant the workers met the state's definition of "employees," thus eliciting the awards.   

(Bonus trivia: One of the lead lawyers for the state attorney general was Jamal Whitehead, appointed by President Biden in 2023 to serve as a federal circuit judge in the same courthouse where he beat GEO.) 

Behind the Scenes - GEO/ICE 2018-20

As lawsuits against the private prisons proceeded across the country, and federal judges slapped down their motions to dismiss, the firms ran to ICE requesting backup.  With one exception, ICE turned them down.  

In related litigation, the Solicitor General filed a brief in support of neither party and affirming that the Georgia facility that exploited Mark Lyttle was indeed was covered by the Trafficking Victims Protection Act.  The Eleventh Circuit denied CoreCivic's motion to dismiss and also class certification. CoreCivic and plaintiffs settled in November, 2023.    

In 2018, GEO directly and through Congressional minions attempted to pressure the U.S. Government to file briefs supporting GEO's slaving wages and to pay for GEO's litigation fees. 

In February, 2018, GEO wrote to ICE about the Aurora, Colorado litigation:

The legal discovery costs could total several millions of dollars and potential damages could be in the tens of millions.  Understandably, GEO would need to be reimbursed for all of the costs through an equitable adjustment request to ICE. To date, GEO has expended $1,615,000 in legal costs for which we seek an equitable adjustment.

By May GEO asks ICE fork up to $20 million of taxpayer money to pay GEO's legal fees.  In the same letter, GEO's CEO and Chair George Zoley also begs DOJ to defend GEO:  "We urgently implore DOJ to take over the defense of these lawsuits and reimburse GEO for its costs and claims damages."  

ICE and DOJ rebuff GEO.  On June 21, 2018 ICE denied all of Zoley's requests for contract adjustments and refused to defend the private prisons.  First, ICE pointed out there was no change in the conditions stated in the contract:

This is a firm-fixed price performance-based contract. As such, the risk of performance, including the burden of administering the contract, falls to the contractor. Where there is no change to the contract, whether expressly or constructively, an equitable adjustment is not appropriate.

Second, ICE noted the contract clearly stated that ICE would be reimbursing GEO at one dollar/day, and did not state GEO was obligated to pay only one dollar/day:

Furthermore the award document and contract line item structure set forth the rate of reimbursement for the program. (OF 336, CLIN x004, dated September 15, 2011). Accordingly, the service provider has been on notice about these terms since contract inception, when the performance based contract was negotiated. [Emphasis added.]

Third, ICE's contracting officer in 2018 anticipates a key factor in plaintiff's lawsuit and the Judge Bryan's orders: the contract obligates GEO to all relevant legal standards, not cherry-picked protocols and long-standing unlawful practices the plaintiffs were challenging:

Under the terms of the contract, GEO is required to provide detention
services and ensure compliance with all applicable federal, state, and local work safety laws and regulations. (Contract, Section 11-5 and H-17). GEO's defense of these private lawsuits is a defense of its contract performance.  

The applicable work safety laws and regulations in question are those of Washington State.  

That said, despite ICE's own findings, by August, 2018 an ICE Deputy Chief of the Litigation Division tried to push DOJ to file a "Statement of Interest" in support of GEO's unlawful exploitation:

...As you may remember [REDACTED] previously forwarded requests from ICE to DOJ to file statements of interest in six federal district court cases to inform the courts of significant government interest in cases involving novel issues.

The need to file statements of government interests continues to become more pressing.  Since those prior requests were submitted in October 2017 and January 2018, two more related lawsuits have been filed, and ICE has significant concerns about the potential impact on ICE equities if adverse decisions are entered in these cases.  I am attaching a request from our Acting Principal Legal Advisor for DOJ to to file statements of interest in these two additional lawsuits.

Under Attorney General Jeffrey Sessions and Matthew Whitaker, DOJ did not honor the request.  

2019 - First Shoddy DOJ "Statement of Interest"
AG Bill Barr's DOJ in August 2019 did sign a Statement of Interest, but only in the Tacoma case, above the signatures of DOJ Trial Attorney Christopher J. Lynch, along with AUSA Joseph H. Hunt, Principal Deputy Assistant Attorney Ethan P. Davis, Senior Counsel to the AUSA Christopher A. Bates, Director [DOJ Federal Programs Branch] Alexander K. Haas, Assistant Branch Director Jacqueline Coleman Snead.

The 2019 DOJ brief states, "Although the GEO Group’s contract with ICE specifies that the federal government will pay GEO $1 a day for work performed by detainees, Washington wants GEO to pay much more."  Yes, as ICE told GEO, the $1/day reimbursement was not a cap on GEO's wages for those in custody.

The brief reiterated arguments made by GEO and previously rejected by Judge Bryan, not to mention ICE itself.  (In 2014, ICE officials stated in internal emails that the 1978 appropriations Act provided no legal basis for its contractors' exploitative practices.)
The central arguments are:
(1)  enforcing state laws against GEO is discriminatory, insofar as Washington does not apply its minimum wage laws to those in state custody under civil laws;
(2) that federal contractors are immune from state laws; and
(3) federal enforcement of immigration law pre-empts the state's authority to enforce its minimum wage law.  

Washington is Discriminating against GEO, GEO/DOJ Assert
Most of the 2019 brief is devoted to the argument that by enforcing a minimum wage act claim against GEO and not the state's own work program, Washington is unlawfully discriminating against a federal contractor and hence against the federal government:

By requiring federal detention contractors to pay the minimum wage but relieving similarly-situated state facilities from that obligation, the State accordingly runs afoul of basic principles of intergovernmental immunity that have shielded federal activities from state interference since the Founding. p. 6.

In addition to the claim of intergovernmental immunity, the DOJ in a footnote arguments that the litigation is not only discriminating against the federal government, but also interfering with the federal government's sovereign authority over handling immigration policy, and thus the action is barred by the the doctrine of preemption.

The brief is truly terrible, as though drafted by a GEO attorney.  The key case on which DOJ/GEO relies involves a dispute between the Department of Defense and the North Dakota over the rules for alcohol sales.  DOJ/GEO argue that just as the Supreme Court recognized the supremacy of DOD's prerogative to set the rules for alcohol sales on military bases that conflict with state policies, ICE/GEO have the prerogative to set the wages for people in custody under immigration laws.  

The crucial difference DOJ at no point acknowledges: the disputed federal policy on alcohol sales was operationalized per a law Congress passed and pursuant regulations DOD implemented.  ICE/GEO can point to no current Congressional authority for GEO paying anyone less than either the federal or state minimum wage laws. 

In fact, the DOD relies on scores of federal laws that legalize exemptions from hundreds if not thousands of federal, state, and local statutes, from labor to environmental laws.  Congress could pass bills that accomplish the policy objectives GEO and some in ICE -- those counting on the golden revolving door into a lucrative GEO position? -- prefer.  Congress could pass laws exempting from remedies under our minimum wage laws those without legal authority to reside or work in the United States.  And likewise for health and safety labor protections. But since Congress has not done so -- and indeed the House Appropriations Committee twice passed requirements to fund the program at wages of the Service Contract Act, the authorities DOJ/GEO is citing for its intergovernmental immunity argument are just losers.  

Among the legal and also policy reasons even a Republican-led Congress is unlikely to pass legislation that would accomplish the objectives GEO-ICE-DOJ are pursuing is that many of those participating in the work programs have legal authorization to work in the United States, including because they are U.S. citizens. Moreover, even die-hard conservatives should be reluctant to pile on more profits to contractors who can easily afford to pay legal wages from their currrent taxpayer revenues.

It is obvious from some contracts that GEO is promising ICE it will be hiring people from the community to perform contractually obligated work but then boosting corporate profits by paying one dollar/day to those in GEO's custody.  Financial data revealed during the trial but typically concealed show that the $37.5 million GEO was ordered to pay for back wages, unjust enrichment, and plaintiff attorney fees still leaves GEO able to pay wages from its bloated government fees.  

GEO's own records obtained from information obtained from FOIA requests and court release make this clear.  First, GEO in 2018 estimated that it would cost $155 million to pay minimum wage daily to people nationwide who were performing work while in ICE custody, assuming 33,000 detained each night.  

Second, GEO's claimed net profits* for the Tacoma facility alone were:

2010: $13,204,102
2011: $15,214,358
2012: $9,697,371
2013: $10,788,018
2014: $5,901,703
2015: $11,663,530
2016: $10,575,188

*These figures reflect annual net revenues after paying millions for the bloated salaries of GEO's Chairman George Zoley and others who were directing GEO's resources toward lobbying and rewarding ICE officials with cushy GEO jobs, including ICE's Dan Ragsdale, who made numerous statements during his trial testimony as a GEO employee he knew or should have known were contradicted by DOJ's and ICE's own analyses, and that Judge Bryan's orders effectively discredited.

By better oversight of GEO's Jail Services Cost Statements, ICE can keep costs down and insure the private firms follow federal, state, and local labor laws. 

2024 Brief Convenient Oversight: Private Contractors Differ from Government Providers
Copious case law referenced and created by this litigation, establish that federal contractors simply by virtue of being federal contractors are not immune from state laws unless a federal law or constitutional precedent specifically establishes the immunity. 

DOJ's 2024 amicus brief disregards these rulings, including the findings of a unanimous Washington State Supreme Court issued in late 2023.  

The DOJ brief claims that appling the MWA to GEO's work program "contravene[s] principles of intergovernmental immunity by discriminating against the federal government’s detention operations."  DOJ notes:

“[A] state law discriminates against the Federal Government or its contractors if it ‘single[s them] out’ for less favorable ‘treatment.’” Washington, 596 U.S. at 839 (second alteration in original) (quoting Washington v. United States, 460 U.S. 536, 546 (1983)). Here, as discussed, Washington has exempted its own detention operations from the state minimum wage laws, excluding from the definition of “employee” “[a]ny resident, inmate, or patient of a state, county, or municipal correctional, detention, treatment or rehabilitative institution.” Wash. Rev. Code § 49.46.010(3)(k). Thus, when Washington operates labor programs within its own correctional or other detention facilities, participants are generally paid substantially less than the minimum wage. DOJ Amicus Brief (2024) p. 25.

This assertion disregards the commonsense precedent that upholds the plain text of the state's law exempting certain government-run programs from the wage act.  Again, the text above directly contradicts the recent Washington Supreme Court ruling:

Quoting Calhoun [v. State, 146 Wn. App. 877, 886 (2008)], GEO argues detainee-workers are not employees in the ordinary sense of the word because the work they perform does not provide sufficient “indices of employment.” 146 Wn. App. at 886. Calhoun is unhelpful here. There, the court considered whether the pretrial detainee, who was in custody at a civil commitment center operated by the State, was an employee for purposes of the WLAD. The court specifically noted that the detainee would not be an employee under the MWA because he fell within the government-institutions exemption,
RCW 49.46.010(3)(k). Thus, while the court considered factors such as the
primary goal of the work the detainee performed to decide whether the detainee was an employee, that analysis does not aid the argument that the ordinary meaning or the MWA’s definition of “employee” excludes detained workers.  Nwauzor v. The GEO Group, Inc., No 101786-3, Slip Opinion, Dec. 21, 2023.

The policy rationale for distinguishing between contractors and the government entities at the state and federal level is quite apparent: private firms are profit-driven, unlike agencies.  Thousands of pages of federal procurement regulations reveal a host of different expectations we-the-people have of corporations that differ from our expectations of fellow citizens in the government.  If federal contractors want the same protections as government operations, they need to stop making profits from taxpayer funds.  If courts were to adhere to GEO's arguments they would also need to shred the federal regulations that only apply to private contractors and not government programs. 

ICE and CCA/CoreCivic Violated Federal Labor Laws
In short, DOJ in 2019 was pleading with the Tacoma federal court to let ICE do whatever it wants, wherever it wants, however it wants without being empowered by laws or even regulations. 

When ICE tried to subvert federal labor contracting laws the Department of Labor pushed back.  The DOL in 2015 demanded ICE rewrite its contract with CCA to include the wages and benefits mandated by the Service Contract Act.  

U.S, Department of Labor WAGE AND HOUR DIVISION 230 N, First Ave Suite 402 Phoenix, AZ 85003

Transmitted via email

September 9, 2015

U.S. Department of Homeland Security Immigration and Customs Enforcement

RE: Service Contract Act Clauses and Stipulations Contract No.: DROIGSA-06-0002

Dear Madame,

As you are aware, it has come to the attention of the Department of Jabor (DOL) that the DHS ICE has issued a contract with CCA Tennessee in order to provide all housing, transportation, medical, guard services and food to federal inmates. The DOL has learned that the DHS ICE failed to include the Service Contact Act (SCA) or the Contract Work Hours aud Safety Standards Act (CWHSSA) clauses and stipulations.

The Service Contact Act requires that all contracts over $2,500 that are principally for the furnishing of services through the use of Service Employees to the United States, must include SCA provisions and the appropriate wage determination. Additionally, any contract over $100,000 must incorporate the CWHSSA stipulations as well.

The Department of Labor is requesting pursuant to 29 CFR 4.5(c) that the contract be modified retroactively to the start date of the contract to include CFR Part 4.6 and CFR Part 4.181 in its entirety.

Please advise Wage and Hour Investigations b(5)(6); (b)(7)(C) if your agency’s actions with regard to the ahove- referenced malter within by Friday, October 9, 2015. You may contact |(b)(6); (b)(7)(C) ht 602-407 5)(6), if you need further assistance.

Sincerely,

((b)(6); (b)(7)(C)

Phoenix District Director

2020-ICLI-00042 4734

DOL is telling ICE its protocols and contracts must abide by U.S. federal law.  The real discrimination would be if somehow courts let one agency cut contracts with one industry that evaded federal, state, and labor laws without authorization from Congress, in this case taking the form of an updated statute reflecting the realities of the private detention industry, in contrast with the federal government operations in 1950, AND funding for any new work program.

DOJ Contravenes House Dems Appropriations Committee

The amicus brief also disregards the House Appropriations Committee Acts for fy2022 and fy2023.  The Acts, passed under Democratic leadership, state at Sec. 221:

Not later than 180 days after the date of enactment of this Act, allowances to individuals held in custody under the immigration laws for work performed may not be less than the rates established under paragraph (1) of section 6703 of title 41, United States Code ["The Service Contract Act"].  (And see hearing repts. fy 2022 and fy 2023.)

In fact, the fy 2023 Act prohibited using even the small dollar/day contractor payments. 

S EC . 221. (a) No Federal funds may be used for the purposes of section 6(d) of Public Law 81–626 (8 U.S.C. 18 1555(d)).

(b) Subsection (a) shall not apply if the rate described such section for work performed is not less than the rates established under paragraph (1) of section 6703 22 of title 41, United States Code.

The Acts were not passed in the final Congressional Appropriations Acts, but nonetheless send a signal that today's Democrat Congressional experts have a very different policy position on private prisons exploiting detained labor than than propounded by AG Garland's DOJ. 

Predatory Governance
Especially when many Dems are jumping on the anti-immigrant scapegoating bandwagon, the notion that folks in deportation proceedings should earn legal wages for their work cooking, cleaning, doing laundry, and buffing floors on the midnight to 8 a.m. shift (Mark's job at the Immigration and Customs Enforcement (ICE) contracted facility in Lumpkin, Georgia) might seem a stretch.  But the alternative is far more irrational: a single industry able to exempt itself from the minimum wage laws that protect labor and the labor market from unscrupulous employers.  

In addition to being unlawful on its face, ICE's self-authorized carve out from labor laws feeds massive profits into a taxpayer-funded lobbying machine, the outcome of which are policies that prioritize corporate welfare and not policies that reflect the needs of U.S. voters.  

(In 2009, Congress's Homeland Security committee found private prisons severely deficient in providing care, and more expensive, compared with county jails. Yet somehow the House Appropriations Committee and then Congress passed a mandatory detention that required massive new contracts with private prisons and no new oversight.) 

The Mercurial Merrick Garland
So why is Merrick Garland's DOJ now weighing in for a firm that revealed that in time frames covered by the litigaiton it made a whopping 36% gross profits and 16-19% net profits by not hiring people at lawful wages?  

One possibility is that the DOJ wants to shore up its federalism arguments against Gov. Abbott's Texas policy.  But the Trump AGs pressed the federalism litigation in California to overturn the state's ban on ICE privately run detention facilities, while not weighing in on state's prerogative to regulate their operations.   

There is no policy or legal rationale preventing Garland from asserting federal supremacy when it comes to the insuring the federal government has authority over detention under immigration laws, AND insuring private prisons abide by state and federal labor laws, not to mention their federal contracts obligating this.  

Another motive is the impact the employment law litigation is having on detention contract negotiations.  Biden now is running on a tough on immigration platform.  Toward this short-sighted end, he is seeking to stop the visuals of thousands of new arrivals.  And for this, he needs detention, to keep folks locked up and off the streets, and also as deterrent.  

Along these lines, Biden supported the House Appropriations Act bumping up ICE's budget; House Spreaker Mike Johnson is bragging that it will up detention beds from 34,000 to 44,000, even though there are no line items in the budget to indicate this (or the alleged defunding of NGOs, as NPR astutely reports).  

During negotiations, private prison firms will be pushing back against labor law enforcement, as these cut into their profits.  As a result of the handful of detention firms and the revolving door, ICE is unlikely to push back by insisting detention facilities operate at the same profit levels as other private firms, or even lower, as is often the case with monopsonies.  (No one is forcing anyone to bid on a government contract; if the returns after paying legal wages are not high enough to hold investor interest, then GEO and others are free to go out of business and let the government handle its own detention services, free of grift.)  

The correct legal response would be for Garland to tell ICE to reject the loser legal arguments from the private prisons.  This would push Congress to reform our deportation policies and consider radically diminishing detention under immigration law, alongside opening our borders.  

How to pay for this?  That's the easy part: end corporate welfare and corrupt, bipartisan predatory governance.  The magnitude of the taxpayer health and welfare funds going to corporations like Centene and enablers like insurance official Rep. Lauren Underwood (D-IL), both of which siphon funds from health care into their private coffers, could pay several times over for the needs of poor communities and newly arriving migrants who need resettlement.   (More on budgets and predatory governance up next.)

Regardless of long-term goals and debates, the DOJ amicus brief is a pathetic reminder of how the Biden administration's role in furthering deficits of our democracy and the rule of law.  If he wants to make amends, Garland should withdraw brief immediately and consider reprimands for those whose poor counsel and analyses produced it. 

Thanks to Andrew Free and Nicolette Glazer for their legal representation in my FOIA litigation.  Mr. Free also played a key role in strategizing the class action lawsuits across the country. 
And many thanks to Deportation Research Clinic assistants for their careful analysis of the FOIA documents on which this post and my other publications rely: Addie Fleming, Caitlin Jimmar, Kendall McKay, Aimee Resnick, Gabriel Sanchez, and Julianna Zitron.     

Please cite as: Jacqueline Stevens, "Biden Administration Backs GEO's Unlawful Labor Practices," States Without Nations blog, March 30, 2024, https://stateswithoutnations.blogspot.com/2024/03/biden-administration-backs-geos.html.