By Katie McCoy*

Our incarceration-focused immigration system needlessly locks up hundreds of thousands of noncitizens each year. The number of people incarcerated in Immigration and Customs Enforcement (ICE) custody was 15,000 when President Biden first took office, and it now hovers near 29,000. Sixty-nine percent of those detained have no criminal history. Many ICE detention facilities are located in rural and remote areas, making it much more difficult for noncitizens to secure representation and to win relief against deportation. 

Despite President Biden’s promise to end federally-contracted, for-profit private prisons, this executive order failed to include ICE detention centers. The criminalization of migration and mass incarceration of noncitizens must end, and one crucial first step in doing so would be to extend the ban on privately contracted prisons to include ICE detention centers. 

ICE Detention Relies Heavily on Private, For-Profit Corporations and Is Wrought with Abuse 

Because President Biden’s executive order bans only the Department of Justice (DOJ) from continuing contacts with privately operated criminal detention facilities, no such limitation was extended to ICE detention facilities, which operate under the Department of Homeland Security. Excluding ICE detention from the executive order fails to address the root problem. Where 10% of the U.S. prison and jail system relies on private prisons, 79% of people detained in ICE custody were held in private prisons in September 2021. And by creating this loophole for private contractors, former DOJ facilities are merely being repurposed into privately-contracted ICE detention centers when their DOJ contracts are phased out.

Privately contracted ICE detention centers lack necessary oversight to prevent abuses and human rights violations. Although any carceral setting is prone to abuse, abhorrent conditions and inadequate access to medical services have been well-documented in for-profit immigration detention. One of the most notorious examples of medical abuse occurred at the Irwin County Detention Center in Ocilla, Georgia, where many women underwent unnecessary and invasive gynecological surgeries without their informed consent. ICE knew about the abusive medical practices at Irwin, a county-owned prison operated by for-profit private company LaSalle Corporations, as early as 2018, but it wasn’t until May 20, 2021, nearly one year after these reports gained international attention, that Secretary Alejandro Mayorkas directed ICE to discontinue use of Irwin and another facility with well-documented abuse of migrants.

On top of the grave violations of basic human rights that occur in immigration detention, private detention poses a huge financial drain. County governments paid to hold noncitizens in county jails typically receive more than $100 per day, per detainee. Biden’s budget for fiscal year 2022 ensures funding for 32,500 beds, incentivizing ICE to keep at least that many individuals detained at any given time. Yet the U.S. Government Accountability Office recently reported that ICE failed to take a “strategic approach to these decisions and has spent millions of dollars a month on unused detention space.” 

For-profit detention corporations continue to profit off noncitizens’ incarceration with little government oversight. Even as conditions in detention deteriorate, the federal government has remained reluctant to ban for-profit corporations from operating ICE detention centers. 

Despite State Attempts to Limit Immigration Detention, Federal Action Is Needed

In the absence of federal action, at least five states—California, Illinois, Washington, Maryland, and New Jersey—have taken abolition into their own hands, banning or limiting state officials from contracting with ICE. This legislation has been met with resistance. Geo Group, one of the leading for-profit prison companies, and the DOJ challenged the legality of California Assembly Bill 32, which phased out all private detention contracts in the state. In a split decision, the Ninth Circuit held that the California law conflicts with broad “federal power and discretion given to the Secretary [of Homeland Security] in an area that remains in the exclusive realm of the federal government . . . .” In contrast, a federal judge dismissed a lawsuit brought by two counties challenging the Illinois Way Forward Act, which bans all immigration detention within the state. Here, the judge found the State validly exercised sovereign immunity to ban political subdivisions, or counties, from contracting with ICE to detain noncitizens. These challenges prove that while states may lead the movement to end for-profit detention, federalism concerns may require action from the federal government.

Even when states have successfully passed legislation phasing out ICE detention, ICE has retaliated against noncitizens by transferring them from closing facilities near loved ones to remote detention centers, particularly those in the rural south. After New Jersey passed legislation barring county officials and private detention companies from signing new ICE contracts, ICE began transferring individuals in New Jersey facilities to other states in the middle of the night, separating them from all support systems and access to legal services. 

For example, Patrick Julney, born in Haiti, came to the United States as a young child. He made a life for himself in New Jersey, but in 2019, ICE arrested, detained, and placed him in deportation proceedings. Mr. Julney spent nearly two years detained in Bergen County, New Jersey, and made public allegations about abusive conditions in Bergen County Jail. Shortly before Bergen was scheduled to close, ICE transferred Mr. Julney to Louisiana, far away from his partner and legal counsel.

The American Civil Liberties Union (ACLU) and National Immigration Project of the National Lawyers Guild (NIPNLG) sued ICE to prevent transfers from the Essex County Correctional Facility, demanding ICE conduct individual evaluations for release and, only if transfer was necessary, require ICE to keep noncitizens within a reasonable proximity to their legal service providers. Rather than preventing the transfers, however, the judge blamed activists’ success in shutting down these facilities as “not well thought out,” resulting in unwanted–but not unlawful–consequences for incarcerated noncitizens. No protection against transfers was granted, and people were transferred to ICE detention facilities across the country. 

Similarly, in Illinois, more than 30 people were transferred to immigration detention in Indiana, Oklahoma, and Texas. At least one of these detention centers had confirmed COVID-19 cases, demonstrating the heightened risk transfers pose during the pandemic on top of the mental and emotional harms and due process concerns.

Conclusion

These transfers and challenges to state legislation demonstrate the need for President Biden to fulfill his campaign promise and end for-profit ICE incarceration nationally. This measure would have widespread support, as a recent poll by the ACLU and YouGov found that 68% of voters want the government to cease all contracts with for-profit private detention corporations. Additionally, ICE must utilize the Guidelines for the Enforcement of Civil Immigration Law, issued by Secretary of Homeland Security Alejandro Mayorkas, to make an individualized assessment whether a noncitizen’s incarceration is necessary. ICE should make reasonable efforts to keep people close to their families, communities, and to preserve access to legal services. 

*Katie McCoy, University of Minnesota Law School Class of 2022, JLI Vol. 40 Managing Editor