Ted S. Warren/AP Photo
Workers in the kitchen of the U.S. Immigration and Customs Enforcement (ICE) detention facility in Tacoma, Washington, September 10, 2019
Instead of attacking President Joe Biden for his immigration policy, Fox News pundits should be praising his administration for keeping the gears of the U.S. deportation machine well greased. Within a week of Biden’s executive order in January purporting to rein in for-profit prisons, Immigration and Customs Enforcement (ICE) quietly announced it would be soliciting bids for yet another especially lucrative “Indefinite Delivery Indefinite Quantity” contract for its detention facility in Port Isabel, Texas. Not only that, but ICE under Trump and Biden has been adding new language encouraging the prisons to exploit those detained, in violation of state and federal labor laws.
Biden’s executive order states: “To decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.” But only 10 percent of all federal criminal inmates are in privately run facilities. The real federal money is in the ICE jails housing civil detainees such as asylum seekers: 98 percent of those in ICE-dedicated jails are earning money for private prison profiteers.
Since Biden’s been in office, ICE has signed new contracts with private prison firms worth more than $260 million, the majority since April.
Even worse, some ICE contracts include new, grammatically incorrect language condoning the exploitation of those awaiting immigration hearings: “Detainee labor shall be used in accordance with the approved detainee work plan and will shall [sic] be paid $1 day.”
“[W]ill shall be paid $1 day”? Is this a scrivener’s error, or evidence that Biden’s ICE couldn’t settle on how to work around federal laws prohibiting wage violations and forced labor?
Since Biden’s been in office, ICE has signed new contracts with private prison firms worth more than $260 million.
Also under Biden’s watch, an important caveat from earlier contracts has gone missing. The 2014 contract for Port Isabel prohibits Ahtna Technical Services, Inc. from fulfilling its commitments with the labor of those detained: “Detainee work detail volunteers may assist food service staff, but shall not be depended upon to fulfill basic [contractual] requirements.” The new contract proposal omitted this restriction. The current Port Isabel contract expires in November 2021; ICE has not indicated how it will proceed in the wake of responses to its February request for information from firms anticipating bidding on a new contract for Port Isabel.
The recent $17 million ICE renewal with Ahtna Support and Training Services, a separate subsidiary, is especially alarming because of because of Ahtna's horrifying track record, including complaints of guards degrading Port Isabel workers during pat-downs for their kitchen shifts. One grievance stated, “Officer [redacted] searched us in a humiliating manner whereby [redacted] pulled our blouse up exposing our breasts in front of detainees.”
The contracts’ work-arounds for private prisons are not only ugly and unconscionable; their rationale of “savings” from mistreating labor is unlawful. The Service Contract Act obligates firms receiving federal contracts to provide compensation far higher than the minimum wage, to avoid depressing compensation when the federal government privatizes its operations. President Biden reinforced this in April with an executive order requiring a $15-an-hour minimum wage for all federal contractors. Federal labor laws apply to all ICE detention contracts, and have no “detainee” exception.
Indeed, in 2014, ICE’s own officials rejected claims that Congress had signed off on $1-a-day wages for those in custody under immigration laws, through appropriations language dating back decades. Kevin Landy, then director of the Office of Detention Policy and Planning, in an email to an ICE press officer on May 1, 2014, questioned whether the 1979 appropriations provision “remains binding on ICE in perpetuity … I don’t think that’s typically true for language inserted in appropriations bills.”
Landy was right. But the message ICE sent the next day to a New York Times journalist reporting on the program disregarded his caution, asserting, “Facilities are reimbursed a minimum of $1 per day by ICE per Congressional appropriation standards.” Three days after the article was published, the public-affairs official, alerting colleagues to her response to follow-up inquiries by Telemundo, Entravision, and Univision, wrote, “Per ERO [Enforcement and Removal Operations], we struck this part of the background section: ‘per Congressional appropriations standards.’”
ICE’s top officials clearly recognized that the official expiration date for this program was October 30, 1979, and that any extended shelf life had long since passed, according to the documents above, released to me after six years of litigation and a judicial order.
These ICE officials are not alone. In seven class action lawsuits, catalyzed by my research, federal judges, including three of four appellate panels, found that ICE protocols and contracts do not permit prison firms to violate U.S. labor laws. Moreover, district courts in California and Washington have allowed suits to proceed on the premise that the work programs GEO and CoreCivic implement violate state minimum-wage laws. A trial in the Washington case is set to begin June 1. Formerly detained immigrants and state Attorney General Bob Ferguson soon will lay out evidence of widespread labor exploitation to a federal jury. Meanwhile, ICE on March 16 renewed GEO’s contract for that same Tacoma facility, as it has with other facilities also being sued.
Biden’s executive order clearly acknowledges the corrosive impact on our political process of for-profit prisons. Yet since Biden took office, ICE has signed contracts with defendant GEO worth over $85 million, some portion of which is being spent not only to lobby Congress, but also to bankroll the GEO lawyers who filed counterclaims against detained plaintiff Chao Chen. (GEO alleged Chen’s efforts to seek compensation for his labor constituted “unjust enrichment.” Judge Robert Bryan dismissed the countersuit.)
Biden’s recent shutdown of two facilities is small comfort to the tens of thousands who remain exploited by their jailers. To take the profits out of our detention industry, Biden needs to order ICE to end these contracts.
