Historic Court Orders Allow State of Washington and Chao Chen to Sue GEO for Minimum Wage Violations

And listen below to November 15, 2017 oral argument before the 10th Circuit Appellate Court panel reviewing class certification in Menocal, et al. v. The GEO Group,  case no. 17-1125, before MATHESON, BACHARACH, and McHUGH, Circuit Judges. 

New York Times

Federal district court judge Robert Bryan in the Western District of Washington State on December 6, 2017 filed two orders denying GEO's motions to dismiss the latest lawsuits seeking damages for violating employment laws.

For the first time, a federal judge has taken a plain text approach to the 1950 statute authorizing compensation to people in custody under immigration laws and noted that the absence of any appropriations since 1978, as required by the authorizing statute, means there is no law authorizing exemptions from state or federal minimum wage laws.

In responding to Chao Chen's complaint, GEO's attorneys argued that federal laws preempted actions against GEO brought under state laws.  In particular, GEO claimed, the 1986 Immigration Reform and Control Act (IRCA), the federal management of immigration detention, and the federal policy goals served by GEO's work program for U.S. citizens and residents detained under immigration laws preempted any claims under state law challenging the employment of immigrants.  

The judge found that IRCA did not expressly preempt state action on wages.  He also rejected the more general claim about preemption: 

Defendant has assembled a hodgepodge of federal statutes and argues that Congress intends to regulate the field of immigration detention generally, including detainee wages. See Dkt. 16 at FN16, citing 8 U.S.C. §§1103, 1225, 1226, 1226a, 1231, 1324a, 1555(d). Surveying the authority from Defendant, it cannot be said, with any degree of clarity, that Congress intends to occupy the field of detainee wages. At best, Defendant has highlighted general sources of authority for ICE agency action, but as discussed below, ICE has not created a regulatory scheme preempting state law through its policies, including the Voluntary Work Program. (Doc 28, p. 9).  

He concluded that "There is no showing that Congress intended for its general appropriations after 1979 to delegate to ICE the authority to preempt state law as to detainee wages" (Doc. 28, p. 11).

Judge Bryan found that the conflict preemption argument was "premature" because it referenced facts and these were inadmissible for a motion to dismiss, and he found the "obstacle" preemption argument "wandering and opaque" (Doc. 28, p. 11).

Of special note is that Judge Bryan rejected GEO's invitation to follow non-precedential analysis in Alvarado Guevara v. INS as taken up in other recent cases, including Menocal, which allowed the lawsuit to proceed based on the allegations of violating the prohibitions against forced labor int eh Trafficking Victims Protection Act and the common law prohibiting unjust enrichment : "Neither Menocal, Whyte, nor Alvarado is binding precedent, and in this Court’s view, extending the logic of Alvarado to interpret this State’s statutory exception to include federal detainees moves beyond interpretation to legislation" (Doc. 28, p. 14).  In other words, just because it might be the case that Congress hates immigrants and a majority at some point may have wanted them to be exploited, there's no law that actually permits this, and there are laws that require firms to pay people according to the minimum wage laws, including those without legal authorization to be paid to work.

In response to a similar complaint filed by the State of Washington last September, and reviewed during the same oral argument, Judge Bryan rejected the same arguments he rejected in the Chen case, and also challenged GEO's conflation of historical practice with legislative intent: 

Admittedly, at first blush the issue of preemption would seem to favor Defendant, given the long history of federal legislation and agency action in the area of immigration detention generally. After peeling back the rhetoric and examining the actual statutes and regulations, on the issue of detainee wages, an area of traditional state prerogative, the Court cannot find evidence of congressional intent—either express or implied—sufficient to overcome the presumption against preemption. Defendant’s motion to dismiss based on preemption should be denied. (Doc. 29, pp. 11-12).

The oral argument for this case is presently being transcribed. (Andrew Free, my FOIA attorney, presented the oral argument for the Plaintiff.)  As soon as it is available, I will post it here.  For a more extended analysis of the laws and legislative history that support Judge Bryan's analysis, please see Jacqueline Stevens, "One Dollar Per Day, The Slaving Wages of Immigration Jail: 1942 to Present," Georgetown Immigration Law Journal (2015/16).

In my more recent research, I encountered clear evidence that the federal government did not in earlier time frames treat those in custody under immigration law as prisoners.  Nor did it require janitorial or other work. A New York Times Magazine article in 1950 urging Ellis Island no longer hold new immigrants noted the "civil servants" who maintained the facility, including cleaning personal quarters, and the 10 cents/hour then paid for kitchen volunteers:

Unarmed guards, freedom of communication, second helpings at mealtime, a school for the children, an excellent hospital for the sick, a constant effort on the part of the officials to make themselves approachable, if not always informative -- all these are signs we are not aping Hitler's concentration camp methods. Or Stalin's labor camps, either. No one has to work at Ellis Island. (A.H. Ruskin 1950, p. 78).

Ruskin noted as well, "The authorities do not require any of the immigrants or deportees to make their beds or clean their rooms. Some do. Most don't. When they don't, regular civil service cleaners do the job" (Ruskin 1950, 75).  (This research is for my contribution to a volume on prison work and includes research on the transition from these boarding arrangements for immigrants to the implementation of a private prison system for housing people in the 1980s; these operational changes were not accompanied by legal changes.)

Menocal et. al. v The GEO Group, case no. 17-1125
See Washington Post article for more on Menocal and class certification last spring.

Also on point for the litigation against GEO's profiteering from the labor of those in its custody was the November oral argument before the Tenth Circuit's three-judge panel in November.  You can listen to that here.  The judges posed some sharp questions of the GEO attorney, even provoking an unsolicited claim that since the folks GEO held were willing to work for $1/day, we should infer that they are never being forced to work because $1/day is effectively nothing.

A judge references another class action precedent on typicality and states:

Isn't it similar here, that there's an inference that's very easy to be made here, that when the people were detained and they're under a policy where they can be disciplined, including in isolation, segregation, that they worked because they didn't want to be punished?

GEO's counsel replies:

It was a simple matter in CVC but it's not here...Here's it's a very human calculus. We're talking about detainees who, say in the housekeeping program, might be put on a list of six to clean once a week or something like that. They make a decision each time whether they're going to consent to work or not.

Another judge interjects:

Or eat, or be put in isolation, right? I mean, slaves had a choice, right? Your point in answering Judge McHugh is they had a choice, right? Well, the sanitation policy didn't give them a choice. Now, they may have had a choice of whether we are going to face the consequences of violating the sanitation policy. But the sanitation policy, would you agree, was mandatory.

GEO:

The sanitation policy, yes, the sanitation policy is something all detainees are subject to. However, what we're talking about at the end of the day is whether these plaintiffs are entitled to damages in a court, whether a court is going to order GEO to pay damages.

JUDGE: That may be later down the road, on the merits.    

GEO: The inference the district court drew was unacceptable. 

JUDGE: I don't think it was the district court that drew the actual inference. The district court said a jury could draw the inference. Am I missing something there? 

GEO:  That's fair, your honor.

The second exchange of note went as follows:

JUDGE:  Is there anything in the record that suggests the existence of an individualized proof that some of the detainees worked for reasons other than the policy?

GEO [Referring to Plaintiff declarations]:  Every one of them contain two paragraphs. One is a paragraph that says, "I performed housecleaning chores because I didn't want to be put in disciplinary segregation." The second paragraph says, I volunteered to work one or more jobs in the Volunteer Work Program. Does that make sense? Does that make sense that the same detainees would be volunteering to step up and work in a variety of jobs in food services and laundry for a dollar a day but yet at the same time say they only performed occasional housekeeping chores... 

JUDGE:  They're different programs.

GEO:   On the ground there's really not a difference. Does the dollar a day make a complete difference? To me it's really kind of a lawyerish distinction.

When I played the MP3 last week for my students they were dumbstruck and we had to listen to that section again.  Sure, for the GEO lawyer who has $10 in change in his car seats $1 = 0, but for the folks who need the $1 to buy some ramen noodles or deodorant, it's a wage and they use it to purchase commodities.  GEO is basically admitting that they are effectively paying nothing to people in exchange for their labor.  Rather than express shame and self-loathing for his role in this scheme, GEO's attorney suggests the availability of labor for $1/day means GEO has lucked into happy slaves and they prefer to work and the six people chosen to clean each day allows each individual detained the sought for opportunity of rotating through their shifts to alleviate their boredom.

The Attorney General of Washington Is Suing GEO!!! And So Are the Workers...

Aurora, Colorado, where GEO warehouses immigrants and forces them to clean the stock rooms on threat of solitary confinement.  Is the lawsuit a death knell to GEO's business model, or a possible small glitch?  The answer depends...on whether they're talking to an Appellate Court or their stockholders.

A district court judge in Colorado gave the green light in February for a class action lawsuit against the private prison firm GEO.   Next up was the the complaint filed in Otay Mesa, California on May 31, 2017.  Then, last week, a state government launched an historic lawsuit against the private prison firm.

On September 20, the Attorney General for the State of Washington stepped up to the plate, charging GEO with violating the state's minimum wage laws and also "unjust enrichment."

And as if that weren't bad enough for GEO, on September 26 a team of private attorneys in Washington came in to clean up on behalf of GEO Tacoma's detained employee Chen Chao, including Andrew Free, who is part of the original group suing GEO in Aurora (and the attorney who represents the DRC in our FOIA litigation).  

GEO's stock, now around $26.40, is continuing on a downward trend from its year high in April, 2016 of $34.  In light of the recent filing, it's surprising it isn't lower.  Maybe that's because GEO is telling the Appellate judges one thing and their stockholders something else. 

GEO in their 2016 annual report admitted being sued by the state of Mississippi.  The report states that they are being accused of... 

violations of various public servant statutes, racketeering activity, antitrust law, civil conspiracy, unjust enrichment and fraud. The complaint seeks compensatory damages, punitive damages, exemplary damages, forfeiture of all money received by the defendants, restitution, interest, attorneys’ fees, other costs, and such other expenses or damages as the court may deem proper. The complaint claims that between 2007 and 2014, the Company and Cornell Companies, Inc. received approximately $256 million in proceeds from public contracts paid for by the State of Mississippi. The Company intends to take all necessary steps to vigorously defend itself and Cornell Companies, Inc. The Company has not recorded an accrual relating to this matter at this time, as a loss is not considered probable or reasonably estimable at this preliminary stage of the lawsuit.

In the SEC update released for the period ending June 30, 2017, GEO noted the Aurora litigation:

On October 22, 2014, nine current and former civil immigration detainees who were detained at the Aurora Immigration Detention Center filed a purported class action lawsuit against the Company in the United States District Court for the District of Colorado (the “Court”). The complaint alleged that the Company was in violation of the Colorado Minimum Wages of Workers Act and the Trafficking Victims Protection Act, and claimed that the Company was unjustly enriched as a result of the level of payment that the detainees received for work performed at the facility, even though the voluntary work program as well as the wage rates and standards associated with the program that are at issue in this case are authorized by the Federal government under guidelines approved by the United States Congress. On July 6, 2015, the Court granted the Company’s motion to dismiss the claim against the Company under the Colorado Minimum Wages of Workers Act but otherwise denied the Company’s motion to dismiss. On February 27, 2017, the Court granted the plaintiffs’ motion for class certification. The Court ordered the parties to file a revised Proposed Stipulated Scheduling and Discovery Order by March 27, 2017 to proceed with the case. On March 13, 2017, GEO filed for permission to appeal this class certification order directly to the 10th Circuit Court of Appeal. On April 11, 2017, the 10th Circuit Court of Appeal granted GEO’s petition to hear the case. As a result, GEO has filed a motion to stay the proceedings in the trial court. Fact discovery in the case has not yet begun. The plaintiffs seek actual damages, compensatory damages, exemplary damages, punitive damages, restitution, attorneys’ fees and costs, and such other relief as the Court may deem proper. The Company intends to take all necessary steps to vigorously defend itself and has consistently refuted the allegations and claims in the lawsuit. The Company has not recorded an accrual relating to this matter at this time, as a loss is not considered probable nor reasonably estimable at this state of the lawsuit. If the Company had to change the level of compensation under the voluntary work program, or to substitute employee work for voluntary work, this could increase costs of operating these facilities. (Emphasis added.)

How can it be the case that on June 30, 2017 the company calmly reports that changing the level of compensation "could increase costs of operating these facilities" even though in March, GEO filed an apoplectic petition with the 10th Circuit asserting a very different risk scenario:

[T]he district court's novel certification of a class comprising all people detained at the Facility over the past ten years poses a potentially catastrophic risk to GEO's ability to honor its contracts with the federal government. And the skeleton of this suit could potentially be refiled against privately operated facilities across the United States, causing GEO and other contractors to defend them even though GEO firmly believes that policies give the Plaintiffs no legal claim. (Appellee Petition, 03/13/2017 at 30, emphasis added). 

Which outcome represents GEO's true position on its future ICE contracts if it loses these lawsuits?  Is it merely that a loss "could increase costs of operating these facilities"? Or does the Aurora lawsuit pose a "catastrophic risk"  to GEO's capacity to honor its ICE contracts?  Looks like ICE detainees aren't the only ones who may have a claim of Unjust Enrichment against GEO's directors.

Eleventh Circuit Appellate Panel Hears Oral Argument on IJ Who Tossed Professor out of Building

Attorney Bruce Brown

On Tuesday, June 27 I had the honor of observing my attorney Bruce Brown present an oral argument on Stevens v. the Attorney General before a panel of three Eleventh Circuit judges in the Atlanta Appellate Court building on Forsyth St., a million miles from the arc of the moral universe that bottoms out at 180 Spring St., SW, the home of Atlanta's immigration courts, though just a few seconds distant as the crow flies.

You can stream or download the 39 minute hearing.  Attorney Ray Lerer, who has been with me in this since 2012, was in the second chair.  I am incredibly grateful to both of them.

The backstory is that over seven years ago a cranky and duplicitous INS prosecutor hired by the Executive Office of Immigration Review (EOIR) to wear a black robe and rubber stamp removal orders, closed a hearing improperly and then 20 minutes after I had left the courtroom ordered guards to remove me from the building.  I filed a misconduct complaint.  William Cassidy, the attorney-in-the-robe, then colluded with his friend and the guy supervising the investigation, Gary Smith, and claimed that Cassidy never ordered me removed from the building.  This cover-up was in the official letter closing my complaint in June, 2010, a few months after I was thrown out.

Next I filed a request under the Freedom of Information Act and obtained a contemporaneous transcript of the Paragon Security Guard Nathaniel Hayes telling the Battle Creek MegaCenter Operator that he threw me out because "the judge" told him to and that he had no idea what was going on until after he returned and learned EOIR was trying to ban me from immigration hearings.

Then I filed a pro se Complaint and a few months later the law firm of Keegan Federal (the Federal Firm) stepped in.

From left to right, Atlanta City Attorney Jeremy Berry (foreground), Ray Lerer, Bruce Brown after hearing

Through discovery we learned that EOIR's general counsel contacted the agency that handles federal building security to keep me out.  DHS informed EOIR that they couldn't just ban someone but first would need a policy. EOIR couldn't openly say "people critical of IJs and EOIR cannot enter immigration courts" and dropped the matter.

That said, Cassidy recently said as much to law students from Emory Law School who, with the Southern Poverty Law Center, released a letter they sent to the Executive Office of Immigration Review (EOIR) a few months ago about the ridiculous nonsense that passes as law in the Atlanta immigration courts:

The investigation found that during a hearing where Judge William Cassidy rejected a request for bond, he compared an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood.” In a private conversation after a case, Cassidy told an observer for the project that the United States should be more like Russia, noting that “if you come to America, you must speak English.” Cassidy also said his cases involve people “trying to scam the system” and that none of them want to be citizens.

 The Emory Law School/SPLC letter to EOIR Director Juan Osuna states:

IJ Cassidy described why he sometimes did not permit observers in his court, although Immigration Court proceedings are open to the public. IJ Cassidy expressed dismay about “reporters who write all sorts of things about me.”

He continued: “I just follow the law. When you have an uninvited guest in your home, what do you do? You have to tell them to leave.”  IJ Cassidy then provided explanations for comments made during the proceedings. He promised the observer, “let me know if you want to clerk for us. Petition for it and I will put in a good word for you.” 

One observer noted in a later proceeding that IJ Cassidy glanced at him when he spoke harshly to a witness before apologizing and stating, “I did not intend to be abrupt.” In their conversation after the hearing, the observer reported that IJ Cassidy asked whether the observer thought he was “mean or harsh” in his ruling. He sought to explain to another observer why he ruled the way he did and then asked how the observers would use the information they have gathered. 

The panel on Tuesday -- a Reagan appointee, an Obama appointee who was a former public defender, and an Obama appointee who was a former prosecutor -- appeared to have decided in advance that the case would hang on whether or not immigration judges have absolute judicial immunity based on case law conferring an "inherent judicial function" to a penumbra of actions for real judges or Administrative Law Judges employed under the Administrative Procedures Act.

A sad coda to all this is that MaryBeth Keller, who was the person who coordinated the investigation of my complaint by first convening a meeting with the people trying to ban me to "avoid a right hand/left hand" situation, to quote from her email in 2010, and who squashed numerous misconduct investigations under her supervision by officially categorizing complaints as "frivolous" despite her own notes indicating they were not--including allegations of bribery at the Dallas immigration court-- and should have been fired for this many times, was promoted by the Obama administration to Chief Immigration Judge.

Atlanta's "Immigration Courts": Where Judge Judy might end up after she retires from her reality TV show

Here's the wonky history informing our argument that Immigration "Judge" William Cassidy has more in common with Judge Judy than he does with any of the judges in the Forsyth building.

As you'll see, both the phrases "immigration judge" and "immigration court" are created by agency via housekeeping rules with no review and no claim to map onto any underlying functions that are either those of courts (which must maintain independent records), nor recognizably judicial.

1.  In 1950, the Supreme Court in Wong Sang v. McGrath, Attorney General, ruled that a deportation order was unconstitutional because the "special inquiry officer" ordering the removal was not employed nor the hearings conducted under the Administrative Procedures Act:

But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process. We find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner.")

2.  A couple months later, in a Senate Appropriations Hearing, the Supreme Court mandate is discussed.  Only economic considerations are taken into account and the Appropriations Act includes a proviso that explicitly mandates immigration hearings be conducted outside the provisions of the Administrative Procedures Act.

from 1950 Appropriations Hearing

EFFECT OF SUPREME COURT DECISION INVALIDATING DEPORTATION PROCEDURES 

Senator McCARRAN. The committee has just one other question here. In regard to the 1951 appropriation, what will be the effect of the Supreme Court decision in the case of Sung v. U. S., wherein they invalidated the system previously used by the Immigration Service, in having the same inspector act as both the investigative officer and the hearing officer at deportation proceedings? What have you to say to that? 

Mr. MILLER. We have an estimate before the Bureau of the Budget at the present moment, which involves something like $25,000,000 of this sum of about $20,000,000 is for the cost of conducting hearings on the southern frontier and $5,000,000 for other types of cases. One very perplexing phase of that is the necessity, upon application, to get such hearings under the APA Act. 

The Mexicans they apprehend are returned to Mexico. There were over 232,000 Mexicans apprehended in the first 6 months of this fiscal year. They were not all different persons because there are some repeats, of course. That means a half million a year. Right now they are demanding and receiving hearings under 19 (c) suspension of deportation on the ground of economic detriment to American-born children or American spouses, for example. That discretionary relief was, of course, granted and approved by Congress. 

It might in one single instance fix the status in this country of maybe a husband and wife and maybe 12 children, with just 1 of them having been born in this country, usually very shortly after arrival. If we have to give hearings under the Administrative ProcedureAct, and a number of attorneys along the border, I think quite properly, legitimately, are applying for recognition to practice before our service, I think it is going to be a terrific problem. It might possibly cost $150,000,000. 

Probably in 10 years we could give hearings to a half million applicants, we will say. But we will possibly have a million next year and following years. That problem is increasing from a trickle of 10,000 in the last 10 years to this figure that I have just given you. 

Mr. Chairman, may I ask a question about another matter?

Senator MCCARRAN. Yes.

That's the entire Congressional response to the Supreme Court in Sung.

"Justice?
Expensive.
Next item!"

Here's the language in the Supplemental Appropriations Act passed shortly after the above exchange, in which Congress uses ye olde Plenary Authority:

GENERAL PROVISIONS-DEPARTMENT OF JUSTICE

Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7,and 8 of the Administrative Procedure Act (5 . S. C. 1004, 1006, 1007).

One sentence.  Not much longer than "screw you" and not much different. No due process rights for aliens, or U.S. citizens profiled as such.  

3.  As far as open hearings: the hearings before Special Inquiry Officers were not explicitly required to be open to the public until 1965, when the Department of Justice approved a rule change revising 8 CFR 2.16 in language that largely tracks that of the current 8 CFR 1003.27.

4.  1973: Here Come the "Judge"   -  Another federal rule change allowed for "immigration judge" to be used interchangeably with "special inquiry officer," but without one single substantive change in functions, as emphasized by the fact that a formal, public rule change procedure was not followed.

CHAPTER I-IMMIGRATION AND NATURALIZATION SERVICE,

DEPARTMENT OF JUSTICE

PART I-DEFINITIONS

Immigration Judge

Pursuant to 5 U.S.C. 552 and the authority contained in 8 U.S.C. 1103 and 8 CFR 2.1, part 1 of chapter I of title 8 of the Code of Federal Regulations, as hereinafter set forth, Is amended to provide that the terms "immigration judge" and "special inquiry officer" may be used interchangeably.

Section 1.1 is amended by adding at the end thereof a new paragraph (1) to read as follows: § 1.1 Definitions 

(1) The term "immigration judge" means special inquiry officer and may be used interchangeably with the term special inquiry officer wherever it appears in this chapter.

Compliance with the. provisions of 5 U.S.C. 553 (80 Stat. 383) as to notice of proposed rulemaking and delayed effective date is unnecessary in, this instance and would serve no useful purpose because the amendment to § 1.1 relates to a rule of agency organization.

5.  1983  Executive Office of Immigration Review is created.  Again, no formal rule-making process occurs.  It should be noted that through this time period, there are no "immigration courts," only "reviews" and "proceedings."

6.  1987  EOIR makes substantive changes to regulations, including removing the language added in 1965 to require the special inquiry officers to follow the Federal Rules of Civil Procedure whenever possible.

7.  1995 EOIR waves a magic wand and creates "immigration courts," but, like the name change to "immigration judges," provides zero substantive changes.

This final rule amends 8 CFR 3, 103, 204, 208, 212, 236, 240, 242, 245, and 292 by replacing the tribunal name "Office of the Immigration Judge" with the tribunal name "Immigration Court." This rule codifies current usage of the term "Immigration Court" in reference to deportation and exclusion proceedings conducted before Immigration Judges throughout the United States. The rule makes no substantive changes in Immigration Judge proceedings.

EFFECTIVE DATE: This final rule is effective on June 30, 1995 except that the amendment to Sec. 242.1(a) as revised at 59 FR 42414, August 17, 1994, is effective August 17, 1995.

SUPPLEMENTARY INFORMATION: The final rule is a nomenclature change. The rule changes the name of the administrative tribunal which initially hears deportation and exclusion proceedings from "Office of the Immigration Judge" to "Immigration Court."

 So first the agency invents the "immigration judge" and then, inspired by its own fiction, decides if there is a judge, there must be a court!

In the interests of truth in advertising, at the beginning of each hearing the IJs should be forced to make the following announcement: "Just to be clear, this [motions to the dais and seal] is only a 'court' in nomenclature.  And the title?  Some DOJ colleagues made it up a few decades ago without telling anyone first.  The robe?  Do you have any idea how much laundry I avoid with this?  And that nonsense about 'the whole truth and nothing but the truth?'  Hah!  The truth is that there are no independent records created, as would be required for a real court.  I get to create the record all by myself when I push this record button on and off, as the regulation authorizes."

The Weeds
The District Court dismissed my case because EOIR does not make these statements but ignores the statutes and regulations and pretends these are real courts and judges.  District Court Judge Orinda Evans was tricked by this and granted Cassidy absolute judicial immunity, claiming that since real judges can order guards around based on "inherent judicial functions," so, too, can Cassidy.

The ruling fails to grapple with basic tenets of statutory construction: Congress has spoken very clearly and specifically on the authority available immigration judges.  Unlike Article I courts, i.e., courts of record Congress created and to whom they gave contempt authority and authority over the U.S. marshals, and unlike Article III judges, Congress has deliberately restricted IJ contempt authority to civil fines, which the Attorney General has not implemented.  Congress also has limited the independence of IJs, whose decisions may be fashioned at the behest of the Attorney General, to whom they report and who controls their salaries.  (During the hearing Judge Williams pointed out that Cassidy ordering the guards to push me out after talking with headquarters would not occur under the APA.)

As to the question of what IJs should do if there are disturbances: there are thousands of federal employees across the country who make decisions in tense situations and disappoint petitioners, taxpayers, and other citizens every day: they and anyone else feeling unsafe in a federal building may alert a guard.  Either the guard encounters the disturbance in real time and makes an arrest or intervention based on reasonable suspicion of a crime, or an arrest report or request for a restraining order is created.  You don't need to give everyone who works in a federal building absolute judicial immunity in order to maintain order.  Judge Williams came pretty close to stating a version of this in her questioning of the government's attorney, Chris Hollis.  And of course all immigration proceedings throughout the country are in spaces accessible only after passing through a metal detector.

We are not challenging the Constitutionality of IJs to close hearings (though I would like to), but rather making the claim that since the regulation makes the hearings presumptively public, the IJ can't close them because a critic is present.  8 CFR 1003.27 is a federal regulation titled "Public Access to Hearings." The first phrase states, "All hearings, other than exclusion hearings, shall be open to the public." It also gives the immigration judge discretion to close them.

This regulation is similar to any other administrative or legislative body that opens its proceedings to public scrutiny as a matter of course. The First Amendment claim is not whether the discretion afforded EOIR in regulating access is too broad, but whether in implementing this discretion, EOIR employees, including immigration judges, court staff, and agency supervisors, can exclude people because of viewpoint. The First Amendment case law on this is clear that they may not.  (Our record is overflowing with examples of my being tracked and singled out because, as Fran Mooney, in charge of Public Affairs and Building Security put it in the depositions, "she is very critical" of the agency.  (You can find my six articles published in The Nation between 2008-10 here.)

Under our Constitution, proceedings that are generally open to the public may on occasion be closed without turning this discretion into an excuse for subverting public access for unconstitutional reasons. For instance, as we have recently seen, Congress's Judiciary Committee largely meets in public, but on occasion it has closed sessions. Congressional office halls and lobbies are generally open to the public, but some portions are not. And libraries are generally open to the public, but on a schedule determined by library staff, funds permitting.

None of these discretionary restrictions are inconsistent with a government policy requiring access, unless the discretion is based on viewpoint. If the library posts its hours are 9-5 and a librarian, on seeing someone whose religious views he deplores approach and locks the doors, this is no more legal than what EOIR, including Cassidy, did in hiding hearings from me and ordering me pushed out of the building.

Finally, every morning dozens of U.S. citizens show up at immigration courts around the country, don their black robes, and despite and not because of these laws and regulations, adhere to norms of due process and deliver justice as best they can.  Their integrity and fairness redeem our institutions and their character, but do not change the underlying deformities of their supervisors and the agency that cuts their check.

The panel should issue its decision in a few months.  

Federal Court Rejects Prison Firm Akima Global Services Intervenor Motion, Orders ICE Contracts Released

Last week Federal Judge Harry Leinenweber of the Northern District of Illinois smacked down a private prison firm's effort to block Immigration and Customs Enforcement from releasing documents that Akima Global Services, LLC claimed contained proprietary information. The order of April 19, 2017 is part of ongoing litigation to procure information about how the private prison firms profit from the unlawful exploitation of those in their custody under deportation laws.

The passage most meaningful to me was the judge's response to Akima's invocation of deference ICE has shown to its previous redaction requests: 

AGS’s next argument is that ICE, by failing to exempt the Krome Contract, was changing its position that the Krome contract was exempt, and an agency must supply a “reasoned analysis” for such a new policy, citing Abraham Lincoln Memorial Hospital v. Sebelius, 698 F.3d 536, 555 (7th Cir. 2012). However, as ICE pointed out, the previous “decision” was not a formal decision of the agency itself but was an informal ruling made by an employee. Apparently there was no objection to the redaction made by the requester so no formal agency review was undertaken. Such an informal decision made by an employee would not be authoritative, unlike the decision at issue here, which resulted from a full agency review. (pp. 12-13)

Such a finding supports the importance of "forensic intelligence," that is, the largely untapped possibilities for scholarship that thwarts injustice by eliciting information the government does not release unless the public objects to the deference given corporate elites and agency cronies.

from Miami News Time investigative article

Akima runs a large facility in Miami, where the local media have highlighted ongoing abuse. Documents for the Krome facility I downloaded from a FedBizOpps website for the 2012 bid - reproduced in the appendix to this law review article  - reveal that Akima's kitchen operation is staffed by 30 people in its custody it pays one dollar per day and just six people employed from outside the facility. This violates a number of federal laws on labor and government contracts. Like similar facilities with ICE contracts, Akima fulfills virtually all its obligations to the government, save those of actual guard duties, by forcing those in its custody to work for slaving wages or no pay at all.

In the 29 months since Andrew Free, the brilliant civil rights attorney who represents me in FOIA litigation, filed the complaint, ICE has released thousands of pages of documents that I have discussed in my scholarship and on which journalists have reported, including the death by electrocution of Cesar Gonzalez after his jackhammer struck a powerline and sent 10,000 volts of direct current through his body. That said, we continue to battle to force ICE to remove the hundreds if not thousands of unjustified redactions, and to release dozens of documents still withheld in their entirety. (To support this work, please go here, or send funds directly to Attorney Free.)

Mother Jones and the Washington Post have covered the successful class action litigation underway against the GEO Corporation in Aurora, Colorado. For the orders in the Menocal lawsuit and the primary source documents obtained in our litigation, , please go here.

Tenth Circuit Orders Immigrant in Turlock, California Deported in Absentia, No Proof of Service

First Inn of Colorado, where ICE in 2007 sent Notice of Detainer for U.S. Citizen Peter Guzman, who was in the custody of the Los Angeles County Jail and had never been to the inn 

I was just browsing through recent Tenth Circuit opinions this morning and bumped into an order of March 30, 2017 deporting a Mr. Prabhjot Singh because he could not meet his burden of proving that the Executive Office of Immigration Review (EOIR) did not through regular mail send him a notice of his hearing.

For most people reading this, the order seems innocuous enough.  A guy from India is apprehended in March, 2014 in Arizona by a border patrol agent for entering illegally, blows off his notice to appear in immigration court, and then claims he never received it.  But a closer review raises questions not just about his case but the larger due process problems of relying on self-serving boilerplate statements of protocol by EOIR staff for deporting people whose affidavits offer evidence to the contrary.

Singh was first detained in Arizona and then transferred to Utah, where, 15 days after his apprehension, he was released on a  $7,500 bond after giving the Department of Homeland Security (DHS) a new address in Turlock, California.  On August 7, 2014, Singh is deported by an unnamed Salt Lake City immigration judge in absentia.  The Board of Immigration Appeals denies his October appeal to reopen the case, including his sworn affidavit stating he never received the Notice to Appear.

The Tenth Circuit affirms:

The alien bears the “burden of demonstrating the claimed lack of notice.” Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004)“The burden is not alight one.” Id. “Evidence that the notice of hearing was mailed to the alien [at his most recent address] raises a presumption of receipt.” Thongphilack v. Gonzales, 506 F.3d 1207, 1209 (10th Cir. 2007); see also Gurung, 371 F.3d at 721-22 (“A notice to appear is sufficient, both for due process and statutory purposes, if it is sent by regular mail to an alien’s contact address of record”; “the alien must overcome the presumption of due receipt raised by the evidence of mailing”). “The alien must support his motion to reopen with affidavits or other evidentiary materials in order to overcome the presumption of receipt.” Thongphilack, 506 F.3d at 1210. Deliberate ignorance is most convenient and most difficult to disprove. The presumption is, therefore, most appropriate. 

In his affidavit, Singh admits he gave the government the Turlock, California, address upon his release from custody on March 25, 2014. He also admits he resided at that address upon his release. Nevertheless, in the same affidavit, he alleges he did not receive notice of the August 7, 2014 hearing. But, as the BIA aptly said, such self-serving, conclusory statements are insufficient. Thongphilack, 506 F.3d at 1210; see also Gurung, 371 F.3d at 722; Sajidi v. Holder, 438 F. App’x 693, 695 (10th Cir. 2011) (unpublished)

I'm posting this because a few details prompt some head-scratching.  First, someone in the DHS and possibly the IJ -- the order does not say if there was a bond hearing -- in Salt Lake City, Utah trusted Mr. Singh enough to release him on bond.  This was before the November, 2014 implementation of prosecutorial discretion.  And even with this, as a recently arriving alien, Singh would be in the second priority group targeted for removal. (The Tenth Circuit order does not review the substantive merits of Singh's claim to remain, but these facts are consistent with him passing a credible fear interview as part of an asylum claim.)  If he's credible enough for bond and DHS is at best not appealing, why is the judiciary essentially second-guessing the credibility findings of DHS and asserting Singh is not credible enough to believe about receiving mail?  (The fact that he is affirmatively trying to make his case in immigration court and not fleeing is itself evidence of his good faith testimony that the Tenth Circuit simply ignores.)

Second,  on March 25, 2014 the Department of Homeland Security (DHS) had a new address for Mr. Singh in Turlock, California.  Assuming he was pro se, why didn't the DHS, which granted bond, file a motion to change venue to California?  Even if the notice of the August 7 hearing were received, it would have required Mr. Singh to return to Utah.

Third, what crazy prejudice on the part of our judges allows the government to falsely imprison or kidnap people -- capture and send them away regardless of potentially legitimate asylum claims -- for no reason other than that the person about to lose her liberty cannot prove a negative, i.e., the absence of a piece of mail?  If proof of service is required for Colorado Small Claims courts for damages of up to $7,500, then how can the Tenth Circuit find any due process in deporting people without the government bothering to show the U.S. Post Office certified delivery?  (Indeed, this is the position of the Ninth Circuit, as characterized in a 2008 BIA decision published on this point.)

Fourth, Executive Office of Immigration Review (EOIR) administrators make all sorts of mistakes all the time, including with their own address (!), and the same for ICE, including not only deporting U.S. citizens but sending U.S citizen Peter Guzman's detainer to a Colorado inn in the Tenth Circuit, even though he was in the custody of the Los Angeles County Jail and had never been to Colorado.  If the government cannot afford to pay for Certified Mail to ensure Mr. Singh has his day in (fake) immigration court, it cannot afford to deport Mr. Singh.

ICE Data Released Today: ICE Almost Doubles Detainers Issued from Same Time in 2015

Only in America
VIDEO: While Trump is deporting people, US citizens are protecting them/us

A journalist asked today about how the arrests under Trump compared with Obama.  It turns out that today Immigration and Customs Enforcement (ICE) issued a report indicating that between January 28 and February 3, 2017 the agency had issued 3,083 detainers throughout the United States, which is about 45% of the 6,975 people for whom ICE issued detainers in the entire month of February, 2015, according to government data hosted by Syracuse University's TRAC.

(Detainers are typically sent by ICE to law enforcement agencies, usually jails or prisons.  The detainers may be for someone who was arrested and not convicted, someone who is set to be released immediately, or could be for someone serving a prison sentence, so that the LEA notifies ICE when the person is being released from that agency's custody.  In other words, ICE may not take immediate custody of those for whom the detainers are issued.)

If ICE numbers stay on track, the agency will have issued detainers for 12,332 people for the month of February, 2017, or 177% of the number detained during the same period in 2015.

Also of note: ICE says just 206 detainers were declined during the one week of January 28 - February 3, 2017.

CAUTION:  The government's data on detention and deportations suck.  I am reporting data the government has made publicly available, but only time and careful research will clarify if these data are in fact accurate.  TRAC includes similar caveats
in its reports as well.

UPDATE: THIS JUST IN FROM TRAC:
==========================================  
Transactional Records Access Clearinghouse  
==========================================  
FOR IMMEDIATE RELEASE  

Greetings. Today Immigration and Customs Enforcement issued its first weekly report on detainers that it said had been refused by non-federal law enforcement agencies. Unfortunately, the information ICE released is very limited and selective.

At the same time ICE released its report, the agency has started withholding other more comprehensive detainer-by-detainer information that ICE previously released to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in response to Freedom of Information Act (FOIA) requests. ICE does not claim the withheld information is exempt from disclosure, it simply claims past releases were discretionary and it is no longer willing to make many of these details available to the public.

Unfortunately, because of these ICE refusals, TRAC is unable to update its online free web query tool that allows the public to view all detainers as well as notices issued to each local law enforcement agency, month-by-month, during both the Bush and Obama Administrations, and then track what happened. TRAC's apps cover not simply whether a detainer was refused, but whether ICE actually took the person into custody. They also show how often deportation ultimately occurred following the use of a detainer. To view these TRAC online tools see:

   Detainers: http://trac.syr.edu/phptools/immigration/detain/
   Removals: http://trac.syr.edu/phptools/immigration/remove/

In contrast, the limited information in ICE's new weekly report makes meaningful comparisons difficult. ICE's report does not provide any information on how many detainers the local law enforcement agency may have received in total, listing only those that ICE recorded as refused. The public also does not know, for example, how often ICE issued a detainer but then decided not to take the person into custody. Or having taken individuals into custody, found it did not have a legal basis to deport them.

ICE's report does not provide any information about the content of the detainer itself, or even whether the original detainer request met legal requirements that were outlined in the Department of Homeland Security's November 2014 memorandum regarding limits on its legal authority to issue detainers.

David Burnham and Susan B. Long, co-directors  
Transactional Records Access Clearinghouse  
Syracuse University  
Suite 360, Newhouse II  
Syracuse, NY 13244-2100  
315-443-3563   

Federal Judge Certifies Class of Detained Immigrants Suing GEO for Violating Trafficking Victims Protection Act and for Unjust Enrichment!

Judge John Kane Order of February 27, 2017, on case brought against GEO for exploiting the people it has locked up and making illegal super profits from their labor:

"I have not found and GEO has not provided any authority requiring that, for TVPA claims, causation must be proven by direct and not circumstantial evidence. Were a jury deciding the individual merits of Representatives claims, it surely would be permitted to make such an inference. Thus, it should
be allowed on a classwide basis as well. See CGC Holding Co., LLC, 773 F.3d at 1092."

Kane notes that precisely because Plaintiffs have few resources and are not native English speakers, class certification is appropriate.

The order in its entirety is here.

For previous complaints, please go here.

If the suit is successful, the private prison industry will be shut down for civil immigration cases--if GEO, CCA, and the other immigration prison profiteers had to pay prevailing wages for work performed, the profits would vanish and so would their incentive to lobby, i.e., bribe, Congress for mandatory detention and other laws that sustain their industry and hurt U.S. residents who lack, or appear to lack, legal status.

Congratulations to the plaintiffs and the legal team behind this!!
Brandt Milstein (Milstein Law Office), Andrew Turner (Buescher, Kelman & Perera, P.C.), Alexander Hood (Towards Justice),  Hans Meyer (Meyer Law Office, P.C.), and Andrew Free (Law Office of R. Andrew Free).

Background: Plaintiff attorneys read this article in the New York Times discussing research published as "One Dollar Per Day: The Slaving Wages of Immigration Jail, 1943 to Present," Georgetown Immigration Law Journal, which owes a lot to the FOIA litigation on my behalf by Andrew Free.  The attorneys investigated GEO's Aurora facility, identified plaintiffs, and sued GEO.  The Fair Labor Standards Act Minimum Wage claim was thrown out, but Plaintiffs will appeal; the TVPA (forced labor), and Unjust Enrichment (Colorado common law) claims are the ones for which Judge Kane certified the class.

Of course there is more legal work and research ahead.  The Deportation Research Clinic is soliciting donations to support our research on this and other government misconduct, including ongoing FOIA litigation over prison contracts.  At present the Clinic research is supported by student volunteer and paid research funded by a few thousand dollars/year from my discretionary account.  All contributions welcome! To donate, please contact kelby AT protonmail.com.  The Clinic is a nonprofit and all donations are tax deductible. 

Back to the Future: Local Government Support for ICE before and after Trump, 287(g) and the Rest

“If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.” Those chilling words were spoken by James Pendergraph, then executive director of Immigration and Customs Enforcement’s (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008. - From Jacqueline Stevens, "America's Secret ICE Castles," The Nation, January 4, 2010, quoting from Amnesty report "Jailed Without Justice."

See below for specific budget and operational details-Blogspot won't allow an anchor.

As the Trump administration rolls out its efforts to deport U.S. residents, with and without the legal right to be here - including U.S. citizens - it is worth reflecting on what is and is not consistent with Immigration and Customs Enforcement (ICE) efforts under the Bush administration and under Deporter in Chief, Barack Obama, whose administration was responsible for rolling out "Secure Communities," begun under the guidance of James Pendergraph.  

In short, the Trump administration is resuming where the Bush administration left off.  The only difference is that the Bush administration lied.  It paid lip service to civil liberties and respect for immigrant communities.  When he first took office and was aiming for "comprehensive immigration reform" Obama stuck with the same removal policies as his predecessor, hoping to find Republican partners to support the paths to citizenship and guest worker programs.  Once Obama's constituents convinced him that this was never happening, Obama changed course, but it was too little and too late.  

Trump's trumpeting of policies targeting for removal basically everyone who might seem a non-citizen is no more than sticking into Executive Orders the protocols and practices, if not policies, more quietly initiated by ICE and its predecessor Immigration and Naturalization Services (INS) during the Bush and Clinton administrations.

In fact, using local and state authorities to capture and deport U.S. residents go back to the 1980s.   (I say "U.S. residents" because the people who end up in the jails and prisons across the country tend to be people who have been in the United States for years and even decades.)  It came out of Governor Pete Wilson attempting to blame his budget failures on Latinos.  Wilson riled up the California Congressional delegation and there were hearings on the costs to states of incarcerating those without legal status.

Two outcomes were in federal legislation passed in the Clinton era: the State Criminal Alien Apprehension Program (SCAAP) and the "287(g)" programs that used "Memorandum of Understanding" (MOU) to authorize local sheriff staff to use arrest and jail records for those who were foreign born and then to fill out paperwork reporting them to the ICE predecessor agency "Immigration and Naturalization Service" (INS).   In the last couple years of the Bush administration, ICE hired James Pendergraph, the Sheriff from Mecklenburg County, North Carolina who was an early and vigorous 287(g) partner, and attempted to extend it nationwide by a program called Secure Communities.  (He's the guy quoted at the top of this post.)

Detaining and Deporting U.S. Citizens

SCAAP, which is behind the Institutional Hearing Programs (fast mass removal "hearings" via televideo for people who are locked up in prison and do not have attorneys) also is the main mechanism for the unlawful detention and deportation of U.S. citizens as aliens, as I reported years ago, in describing the role SCAAP played in the deportation of Mark Lyttle to Mexico, despite the fact that he was born in North Carolina, has no relatives in Mexico, had never been to Mexico, and speaks no Spanish. 

Budget and Operational Facts

1.  287(g)
The 2017 DHS budget states there are 32 287(g) agreements in place.  That means 32 counties out of more than 3100 counties nationwide have these. 99.9% of counties do NOT have these.  

From DHS, Congressional Budget Justification, FY2017, vol. II, p. 69.

The cost of this program is about $5,400,000 annually.  (See  Congressional Budget Justification, FY 2017, p. 14).  The MOU funding is ONLY for ICE operations.  The MOUs specifically exclude any payments to the local counties for their cooperation.  Counties not only have refused to implement 287(g) agreements, but have refused to honor ICE detainer requests because of civil liability concerns.  

The areas that support these programs are typically in the South or regions with economies linked to the prison industrial complex and are entering into these agreements despite and not because of financial incentives for the counties.

2.  Criminal Alien Program (CAP) 
These pay ICE agents to review data from jails and prisons participating in SCAAP, as well as to issue detainers and arrange for Notices to Appear and removal orders.  

For Larger Version of CAP FY 2016-2017 Budget, Click Here.

The budget for these operations is about $347 million annually, clearly dwarfing the expenditures on the 287(g) operations.  

3.  SCAAP

This is how much the federal government pays states and counties that provide the reporting data on foreign born inmates.  The last I checked, all states and counties participate in this, but this was a few years ago and may have changed, though judging from San Francisco City and County participation in 2015, when they received about $170,000 for reporting their foreign-born inmates - including those arrested and not found guilty - probably not.

The annual expenditure on this in 2015, the most recent data reported on the DOJ website, was $167 million.

4. Secure Communities 
This was replaced by the Priorities Enforcement Program (PEP) in July, 2015. The difference seems to be that under PEP ICE is relying on FBI and other federal databases, rather than trying to use local databases.  The Obama administration's DHS points out that communities were resisting ICE efforts to acquire local law enforcement data under Secure Communities and tells us what to expect now that Trump is reverting to this:

Removals have decreased as an increasing number of jurisdictions have reduced or eliminated the transfer out of priority individuals to ICE custody. Jurisdictions have also started to limit or deny ICE access to their detention facilities. Because of detainer non-
compliance and not receiving notifications of releases, jurisdictions release criminals directly into society rather than transferring them into ICE custody in a controlled, safe, and secure manner. Without this cooperation, ERO officers must seek out these criminals in higher risk situations that take more time and manpower. The additional effort required reduces the total number of criminal aliens ERO is able to apprehend and ultimately remove.  DHS Congressional Budget Justification, FY 2017, vol. II, p. 68.

DHS Budget, FY 2017, showing communities declining ICE detainers, p. 68.

Under PEP, ICE communicates its enforcement interest to LEAs [law enforcement agencies] through a request for notification or a request for detention. ICE continues to refine its allocation of enforcement resources and build capabilities to initiate efficient and aggressive enforcement actions against priority aliens while they are in local custody. Since the establishment of PEP, more than 275 jurisdictions that had previously not honored ICE detainers have agreed to honor requests for notification or requests for detention. This has a direct impact on officer and public safety, as criminal aliens in these
jurisdictions will be apprehended by ICE officers within a controlled detention setting rather than released into the community where they would have an opportunity to re-offend.

The current website indicates that PEP information is archived and it appears to be history now that Secure Communities is being re-rolled out.  Here's a description of what to expect from when it was in effect and supposedly mandatory under the Obama administration.  

A 2012 ICE Budget Fact Sheet put the cost of Secure Communities in place then at $184 million.