Monday, February 27, 2017

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  The Clinic is a nonprofit and all donations are tax deductible. 

Friday, February 24, 2017

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.  

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.  

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