NPR Airs Story on ICE Private Prison Labor

NPR reporter Alexandra Starr covers lawsuit and slaving wages to those in custody under immigration laws.  Listen here.

Note that in response to my assertion that those in ICE custody are not exempt from the protections of federal labo laws, GEO notes the dollar/per day level in an appropriations Act, but fails to engage with the fact the appropriation level set expired in 1979.   Note as well that there are many other labor laws that have little to do with wages, and from which there is not even old law that exempts from coverage those working for private prisons firms.

This includes standards of the Occupational Safety and Health Administration, and which were found by a California agency to apply to apply to a California resident in ICE custody courtesy of the Mira Loma Sheriff.

New York Times Story on ICE Detention Center Slave Wages

photo Ramin Rahimian, for the New York Times

Check out the New York Times article by Ian Urbina, "Using Jailed Migrants as a Pool of Cheap Labor." 

If you want to read more about the program's legality and history, here's the working paper I posted last week on the Social Science Research Network, "One Dollar Per Day: The Slaving Wages of Immigration Jail Work Programs - A History and Legal Analysis, from 1943 to Present."   (posted May 15, 2014, 160 pages).  

From the abstract:

This Paper evaluates the legality of the $1 per day payments for work performed by those in custody under immigration laws as well as its genesis. In 1941, President Franklin Roosevelt issued an order moving the Immigration and Naturalization Service (INS) out of the Department of Labor and into the Justice Department. During this same time frame, the U.S. Government established internment camps for "enemy aliens," i.e., civilians in the United States and other countries in Latin America who were or were imagined to be citizens of Axis powers. In 1943, the Justice Department paid those so held 80 cents per day for their work performed in the camps; the average daily cost of each person's detention in 1943 was one dollar. This was the origins of the 1950 law authorizing paying those in custody under immigration laws for work performed. If those in immigration custody today were paid at the ratio from 1943, they would be earning about $80 per day. This paper draws on government documents and contracts obtained under the Freedom of Information Act as well as the program's implementation and history as the basis for a statutory analysis of the Government's defense of its legality. The Paper argues that under a reading of the relevant laws' plain meaning, legislative history, and purpose, the program appears to violate various labor laws and the Fifth, Sixth, Thirteenth and Fourteenth Amendments.

For entire paper, please go here.

Port Isabel Detention Facility Overcrowded, ICE Vows to Continue Violating Prison Standards, Only 10% Have Convictions

Recent contract documents reveal the Texas Port Isabel Detention Center is subjecting the average 1115 people it locks up each night to overcrowding, and that 90 per cent of them have no criminal records.

On February 11 and 12, 2014 representatives from several private prison firms visited the Port Isabel Facility.  Then they submitted questions, to assist in them preparing bids.   You can read the Q and A here.

The contractor question published here does not mention the precise level of overcrowding but it appears to be a) systemic; and b) of no concern to ICE.

This is important not only because of the inherent problem of subjecting those in civil detention to conditions deemed impermissible for criminal punishment, and not only because of ICE indifference to this.  This is the answer ICE gives to private prison firms, authorizing their violations but it is not the answer ICE gives Congress and the American public.  By ICE insisting that its facilities meet the American Correction Association standards for criminal inmates, for instance, in its Annual Performance Reports to Congress (see U.S. Department of Homeland Security Annual Performance Report for Fiscal Years (FY) 2012 – 2014) ICE is just lying. And when ICE tells the contractors that the agency has no intention of following the ACA standards for bed space, it is sending a signal that the agency may condone violations as well.

 If ICE can't be trusted to adhere to basic quantifiable standards such as bed occupancy, and to accurately represent their non-compliance in their communications with Congress, including their budget proposals, this is further evidence of the need for ending detention under immigration laws altogether.

The demonstrable problem is too many beds, but absent their actual use there would appear to be no reason for ICE's commitment to the noncompliant infrastructure. Moreover, ICE can't credibly tout its adherence to ACA standards and then slough off those that it deems superfluous.

On the one side of the practice are the harms being committed every day by the government, including false imprisonment of U.S citizens and their banishment, as well as corrosion of the rule of law.  On the other side, well, immigrants, economists, and human rights professionals agree there is no upside to this.

Also, of interest is that 90% of those held at the Port Isabel facility have no criminal history whatsoever.

Definitions (from ICE Statistics):  "Level 1, Level 2, and Level 3 offenders. Level 1 offenders are those aliens convicted of "aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as "felonies." Level 2 offenders are aliens convicted of any other felony or three or more crimes each punishable by less than one year, commonly referred to as "misdemeanors." Level 3 offenders are aliens convicted of "misdemeanor" crime(s) punishable by less than one year. Prior to FY 2011, ICE used SC levels 1, 2, and 3 for prioritization purposes."

Government Keeps Thousands Locked Up for Months Without Final Decisions, Authorizes New Delays for Bond Hearings

On July 14, 2010, Brian O'Leary, Chief Immigration Judge for the Executive Office of Immigration Review (EOIR) issued an order authorizing arbitrary delays for bond hearings and case completions for people locked up pending determination of their citizenship or immigration status.

According to documents released to me under the Freedom of Information Act (FOIA), the Office of the Chief Immigration Judge established a 60 day case completion goal for 85% of detained respondents and increased from 3 to 21 days the time that people may be held pending bond hearings.  (The "redeterminations" refer to the immigration judges' initial bond hearings to evaluate the conditions of release set by the Department of Homeland Security, not reassessments of bonds set by the immigration courts.)

O'Leary signed onto a policy of the United States government holding people on the authority of DHS agents without any review for at least 21 days.  The data show that the agency has met this seemingly unconstitutional goal for 90% of those detained, and thus also shows that thousands of people are having to wait for more than 21 days for a bond hearing.  For instance, their data shows that for the first quarter of 2012, 1,324 people did not have bond hearings within 21 days of being taken into custody by DHS.

(The full release of this data includes analysis by immigration court and will be available here by zip file this weekend.)

Taking these data at face value, the government is funding the capacity to lock people up at a level greater than the capacity to provide the admittedly limited review for these custody decisions.

O'Leary's response to this is to sell out the rights of those on the EOIR docket.  Rather than release them because it is unconstitutional to hold people indefinitely without an independent review of their custody status, O'Leary is playing the role of the good bureaucrat and expanding the time frame for incarcerations so that it accommodates the rate of DHS lockups.

The case completion data also are troubling.  On the basis of their own data, 18% of people locked up have been waiting for their cases to have final decisions in a time frame we know is beyond 60  days.

Finally, it is not clear that the tracking information is accurately reflecting what is happening on the ground.  Each time a respondent moves from one immigration judge to another, the clock starts over for the EOIR tracking data.  For instance, when the EOIR violated Esteban Tiznado's due process rights by hand picking a former Office of Immigration Litigation employee to hear Tiznado's case in its Falls Church headquarters, instead of leaving it with the case load of Sylvia Arellano in Florence, Arizona, the clock would start over and the initial decision against Tiznado issued almost seven months after he was most recently detained would show up as being issued in the time frame from when his case was redocketed.

We know from the recent response to the budget sequestration that when the funds are short, the DHS will release people it would otherwise detain.  If the DHS will do this because it lacks funds for housing people, then  the DOJ should do this as well, when it lacks funds for protecting their due process rights.  If the EOIR cannot because of budget shortfalls staff the immigration courts at a level sufficient to protect respondents' constitutional rights, then O'Leary needs to instruct his IJs to order their release, not reset goals to accommodate indefinite detention.

CNN Covers Deportation of Luis Alberto Delgado, US Citizen

Those of you who read this blog will be familiar with the fact-pattern of Immigration and Customs Enforcement and the Border Patrol's deportation of Luis Alberto Delgado, a U.S. citizen. On Sunday, CNN's Don Lemon interviewed Mr. Delgado, his attorney Isais Torres, and myself about this event.

In re-reading the coverage in preparation I realized that Mr. Delgado was not the only U.S. citizen whose civil rights were violated, something I didn't mention on CNN but that bears notice. In addition, his brother, Eduardo Luis Pompa, who was driving, also was unlawfully arrested on the basis of racial profiling. The officer admitted that he used the pretext of driving without a license to arrest Mr. Delgado's brother who was then released after his U.S. citizenship was confirmed.

If a U.S. citizen is born in the United States, then the burden of proof is on the government to show otherwise, and the government requires reasonable grounds for suspicion before arresting someone as a non-citizen. Mr. Pompa, according to the Houston Chronicle's Susan Carroll, "released from jail after posting bail after jailers were told by federal officials that he is a U.S. citizen." (To read the story, written before Mr. Delgado was allowed back, go here.)

Of course most U.S. citizens caught driving without a license receive a ticket and their car is impounded, but here Capt. Joe R. Martinez, who pulled the car over because Mr. Delgado was not wearing a seat belt, appears to have been using a traffic offense as an excuse to hold people, just in case they might be deportable. This is precisely the sort of civil rights violation that the Department of Justice (DOJ) alleged in its brief against the State of Arizona and its efforts to use law enforcement to verify legal status.

The DOJ doesn't need to be worried about what may happen down the line but might want to consider filing federal civil rights suits against the localities where this is happening right now.

ICE Crimes and Coverup in Baltimore, MD

CASA de Maryland, an immigrant rights group, on January 28, 2009, released video footage taken by 7-11 cameras showing ICE agents literally rounding up patrons in and outside the store based solely on their appearance as Latino. The link to the video, taken in Baltimore in 2007, is here and you might want to start around 2:45, which is where the events in question are most visible and, at 3:10, you see the ICE agents marching three customers out of the store and sitting them on the curb alongside several others similarly detained.

The video makes two points very clear: 1) ICE initiated contact with the individuals; 2) there is absolutely no "probable cause" or grounds for "reasonable suspicion" other than the illegal motive of racial profiling.

Even more troubling than the initial violation of these people's civil rights is the subsequent cover-up of the ICE agents' illegal activities. According to the CASA attorney Justin Cox, an ICE internal report quoted ICE agents stating that they were approached by the individuals they detained. Cox explains that the agents told the ICE investigator that they "happened to stumble on these people who volunteered that they were in the country with no immigration status." Many of those detained of course were citizens or legally in the country.

The CASA attorney also noted that the investigators who conducted a review of the raid did not interview a single one of the individuals ICE detained. Hardly a sign of an unbiased investigation into civil rights violations.

In response to the release of the video, Washington-based ICE representative Kelly Nantel told an NPR reporter:

"Those who were targeted were the individuals who were congregating and who had approached the vehicle. Obviously, I know there were allegations of racial profiling, those allegations are two years old, more than two years old now. They were thoroughly investigated at the time. That investigation found those allegations to be unsubstantiated."

The video footage renders this statement demonstrably false, as you can see individuals being taken from the store, not near a truck, and also herded AFTER a white pickup truck leaves.

In an interview with a Baltimore Sun reporter, another ICE spokesman, Richard Rocha, says:

"In this case our officers used their training and experience to respond to a developing situation as it unfolded. They were approached by individuals asking if they needed workers. Those workers were questioned and ultimately it was determined they were in the country illegally."

Again, it is obvious that the only situation that developed occurred because of ICE agents acting illegally.

Best wishes to CASA de Maryland in its wrongful arrest lawsuit under the Federal Tort Claim Act. I hope they win every penny of the $500,000 damages they're claiming on behalf of their three clients.

Still, defending civil rights and punishing government coverups shouldn't be left to private individuals and non-profit groups. It's time for the Department of Justice to step up on behalf of not only wrongfully detained US citizens and residents but also the U.S. taxpayer. It's one thing to have the US government, not the agents themselves, pay out millions of dollars in lawsuits, as has happened. If a few ICE agents were imprisoned for their crimes, including lying to a federal officer, which is what appears to have occurred when the agents told ICE investigators about what transpired, perhaps then ICE would pay a bit more attention to the laws and the U.S. Constitution.