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

The 9th Circuit has issued a devastating ruling against a California law, AB 32, that banned the use of for-profit facilities to detain immigrants. The ruling was issued on October 5, 2021, by a panel that included two Trump-appointed judges forming the majority, with a third democratically appointed judge writing the dissent. The ruling may mean that California cannot enforce AB 32 against civil detention facilities used by U.S. Immigration and Customs Enforcement (ICE) to detain immigrants. However, California may still appeal the decision. 

The ruling is the latest chapter in an ongoing battle between advocates and private prison corporations in California over what a state can and cannot do concerning the regulation of private detention facilities. Immigrant Legal Defense joined Immigrant Defense Advocates, the California Collaborative for Immigrant Justice, and the Center for Gender and Refugee Studies in filing an amicus brief in the case focused on the unclean hands of the GEO Group.

In 2019, California made headlines when it passed AB 32, a landmark bill that banned private prisons and detention facilities. The law was hailed as an important step toward the abolition of an industry that has profited for decades from the incarceration and detention of communities of color. Since then, various states, including Washington and Maryland, have followed suit, passing bills to curtail private incarceration. 

For immigration advocates, the bill was an exciting and important step toward ending the for-profit detention of immigrants. The vast majority of immigrants in California are held in for-profit detention facilities, with seven of the eight facilities used to detain immigrants run by private corporations. Nationally, approximately 80% of immigrants are held in for-profit facilities, and advocates have long argued that these corporations perpetuate policies that drive the exorbitant rates of detention for immigrants.

The court found that the provision of AB 32 that applied to civil detention is unconstitutional because it oversteps the state's roles and impacts the field of immigration, a domain exclusively reserved for the federal government. “California is not simply exercising its traditional police powers,” wrote 9th Circuit Judge Kenneth K. Lee, a Trump appointee, “but rather impeding federal immigration policy.” Advocates and the state of California have maintained that the bill was not about immigration but instead ending the operation of an industry that places profits over human lives. 

The decision did not necessarily surprise many advocates, given that two of the three judges hearing the case were appointed by Trump. What was confounding for many was the multitude of factual errors in the majority’s written opinion. These inaccuracies raise questions about whether the judges fully understand the nature of ICE detention.

For example, the majority states, “The United States Immigration and Customs Enforcement (ICE) relies exclusively on private detention centers in California.” ICE, however, does not rely exclusively on private detention centers in California. In fact, ICE has an intergovernmental services agreement with Yuba County Jail that runs through 2099 and allows for the detention of hundreds of immigrants at that facility.

On page 20, the majority writes: “Here, AB 32 does not just ‘touch’ upon the area of immigration detention; it bulldozes over the federal government’s ability to detain immigrants by trying to ban all the current immigration detention facilities in California.” This characterization of AB 32 is wrong, as it is not a complete ban, given the existence of the Yuba facility. It is also important to note that AB 32 does not prevent ICE from building its own facilities and detaining individuals in California. It is unclear that the bill even prevents ICE from using contractors in those facilities so long as those contractors do not own and operate the facility. The court ignores these basic facts and instead characterizes California as overstepping its bounds. 

The majority’s flawed understanding of ICE’s detention system was demonstrated later in the decision when they stated, “To avoid spending large sums of money on government-owned buildings that may remain vacant if immigration wanes, ICE relies only on privately operated detention facilities, including in California.” ICE does not rely only on privately run detention across the country or in California. ICE owns numerous facilities across the country but also, at times, houses detainees in other federal facilities operated by the U.S. Federal Bureau of Prisons, in addition to using local jails and intergovernmental services agreements, as previously mentioned. 

This mischaracterization by the majority is troubling because it is an egregious error of fact and because it distorts ICE’s reliance on private operators. Even worse, this distortion is then used as a basis for their legal ruling in favor of the federal government and private companies. The majority paints private operators as indispensable to ICE when they are not. 

What is missing from the opinion is any meaningful analysis of the horrid conditions that exist in privately owned and operated detention facilities and the extensive findings by various federal investigators that ICE’s detention oversight system is ineffective. Such an examination would provide clarity as to why a bill like AB 32 was designed to target both private prisons and civil detention facilities used by ICE. 

The COVID-19 pandemic has exposed just how horrific conditions in ICE detention are and how little oversight the agency provides in facilities that are run by for-profit corporations. The decision to end the use of such facilities by a state like California should have been analyzed as a step towards protecting the health and safety of those in detention rather than encroaching on immigration enforcement. 

In an interview with the L.A. Times, Jackie Gonzalez, policy director for Immigrant Defense Advocates, called the court’s ruling an overreach. “AB 32 was very clearly a bill aimed at protecting the health, safety, and welfare of individuals subjected to the abuses of private prison corporations,” she said. “Since its enactment, California has closed every private prison and immigration authorities, and the federal government has gone to pains to circumvent the law and expand detention.”

The issue of states' rights and immigration law is part of a complex and ever-growing area of law, with liberal states like California and Washington pushing pro-immigrant policies and states like Texas and Arizona seeking to weaponize state policies against immigrant communities. How these issues are settled is often ultimately dependent on political considerations, including those by judges with certain ideological leanings. 

California Attorney General Rob Bonta, who authored AB 32 during his time in the California legislature, issued a statement vowing to continue to fight. “We will continue the fight to ensure the dignities and rights of everyone in California are protected,” he said. “As a Filipino American who was brought to this country as an infant, this fight is personal to me. While the road ahead may feel a little longer today, our work continues, and we will keep pushing forward.” The California Attorney General can challenge the ruling by seeking an appeal or rehearing in the coming weeks.

The ruling by the 9th Circuit is certainly disappointing, however the push to abolish the use of for-profit detention facilities, and in fact immigration detention as a whole remains alive and well both in California and across the country. 

Advocates Await Decision on Private ICE Facilities in California

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

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

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

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

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

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

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

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

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

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

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

Immigrant Legal Defense and Immigrant Defense Advocates present Amicus Brief in AB 32 Litigation

ILD and Immigrant Defense Advocates will appear before the U.S. District Court for the Southern District of California to present an Amicus Brief filed in the case of The Geo Group, Inc. v. Newsom et al. related to AB 32, a California law banning all for-profit prisons and civil detention facilities.

The hearing is set to take place July 16th, 2020, before the Hon. Janis L. Sammartino.

The brief, which was filed in March of this year, centers on the GEO Group’s documented history of undue influence and bad-faith dealings in the state of California.

In the brief, IDA and ILD argue that GEO’s past conduct and “unclean hands” should bar them from relief.

The unclean hands doctrine derives from the equitable maxim that he who comes into equity must come with clean hands. This maxim “closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.

In the matter before the Court, the Plaintiffs’ pattern of conduct with respect to the contracts at issue include documented instances of inequitable conduct and bad faith. This includes exercising undue influence over local cities in California with respect to Federal contracts, in the pursuit of Plaintiff’s financial benefit. Plaintiff has made promises to make extracontractual payments to local cities in order to secure the benefit of intergovernmental agreements and other outcomes. Plaintiff has sought to hide this influence from the public record, cloaking their intentions and goals under the guise of independent decisions made by local cities. Plaintiffs’ CEO has failed to truthfully testify about these activities while under oath. At present, Plaintiff remains engaged in a sophisticated effort to influence the cities of Adelanto and McFarland with respect to local permits and the contracts at hand. Equity requires that those seeking its protection shall have acted fairly and without fraud or deceit as to the controversy in issue.

Plaintiff’s inequitable and deceptive conduct directly relates to its pursuit of the detention contracts at issue. In applying the unclean hands doctrine, “[w]hat is material is not that the plaintiff’s hands are dirty, but that he dirtied them in acquiring the right he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendants.” Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347, 349 (9th Cir. 1963). Plaintiffs conduct as it relates to obtaining contracts with ICE for civil detention in the state of California was rife with bad faith and deception from the outset, and culminated in the contracts for which it now seeks relief.

Read the Amicus Brief in full here

The case is The Geo Group, Inc. v. Newsom et al

Case Number: 3:19-cv-02491-JLS-WVG

Read the full oral argument presented to the court by IDA's Jackie Gonzalez here.