From California to Colorado to Massachusetts, detainees have recently taken legal action against the for-profit companies and local governments that operate the majority of ICE detention centers. The detainees argue they should be paid minimum wage—some allege that they weren’t even paid the minimum $1 per day. They also allege that the voluntary work program is sometimes not voluntary at all, and that they face violent retaliation from guards if they refuse to work.



Many of these lawsuits will play out as the Administration ramps up its enforcement of immigration laws, including the possible end of the Deferred Action for Childhood Arrivals (DACA) program—which protects 800,000 undocumented immigrants from deportation—indicating that the number of people held in detention centers will likely increase in the coming years.

Meanwhile, the companies in question have crafted a lucrative business model in which the U.S. government pays them billions of dollars to operate federal detention centers. While the companies promise to bring jobs and other economic benefits to the communities where they set up shop, many experts say these promises are overblown because the companies rely on low-paid detainee labor instead.

Blurring the Line Between Detention Centers and Prisons

The detainee voluntary work program was created decades before ICE itself was created in 2003. In 1950, Congress passed a law to make money available for the U.S. government to pay non-citizens for work they performed while in detention. While the law did not specify the wage, Congress appropriated funds to pay detainees $1 per day, which had the same buying power that about $10 per day has today.

While Immigration and Naturalization Service, a now defunct federal agency that was a precursor to ICE, requested that Congress increase the rate to $4 per day in 1982—again, equivalent to about $10 today—Congress did not do so, and the rate has remained “at least $1 per day.” As recently as December 2016, ICE listed the rate in its voluntary work program manual.

Anita Sinha, director of the International Human Rights Law Clinic at the American University Washington College of Law, told the Project On Government Oversight (POGO) that participation in the voluntary work program is often not a voluntary matter for detainees, which, coupled with the low pay, raises questions as to the program’s constitutionality.

“Involuntarily labor is only permissible if it’s due to a punishment of a crime,” she said, referring to the 13th Amendment, which abolished slavery in most instances, but includes a carve-out for anyone convicted of a crime. “Immigration detention is not meant to be punishment for a crime. It’s a civil issue.”

However, all of the experts POGO spoke to said that the ICE detention centers look a lot like prisons, and detainees are often treated like prisoners. While a 2016 report by the Homeland Security Advisory Council notes that “ICE has been clearly on record as favoring a civil detention model, rather than a model designed for the criminal-justice process, because ICE detention is not based on a criminal charge or on punishment,” the report also states that “The full potential of the civil model has not been realized.”

Sinha explained that one reason for this is the companies that run the majority of ICE detention centers are also major players in the prison contracting world. A significant percentage of detainees are actually housed in local jails rather than detention centers. And, in some cases, former prisons are converted into detention centers.

“You have the same exact brick and mortar,” she said of the facilities.

Maru Mora Villalpando, co-founder of NWDC Resistance, an advocacy group for detainees at a detention center in Tacoma, Washington, told POGO, “The detention system is just an extension of the prison system.”

The major difference? The prison system, which is largely government-run as opposed to company-run, is far more transparent. And, as POGO previously reported, the federal Bureau of Prisons proactively provides much more information to the public about its facilities and the people it houses than either ICE or its detention center operators do.

According to Villalpando, who described the conditions at detention centers as “inhumane,” the companies who operate detention centers are only interested in making money.

“If there was real oversight, all of these places would be shut down already,” she said.

“You Want to Go to the Hole?"

In the first class-action lawsuit of its kind, nine former detainees from the Aurora Detention Facility outside of Denver are suing detention center operator GEO Group (formerly Wackenhut Securities) on behalf of over 60,000 detainees who have gone through the doors of the detention center.

The lawsuit alleges that GEO Group coerced Aurora detainees into participating in the ICE voluntary work program under threat of being thrown into solitary confinement.

”GEO pays detainees $1 per day, or no wages at all, for their labor,” according to the complaint, which calls this practice a violation of Colorado minimum wage law.

In signed legal declarations, Aurora detainees described how they or other detainees were forced to work—under threat of solitary confinement—cooking, cleaning, and performing other tasks necessary to keep the contractor facility running.

“None of us got paid anything for the work we did on the cleaning crews,” Carlos Eliezer Ortiz Muñoz, who was detained in 2014 and 2015, wrote. “People who refused to clean were put in solitary.…Some of the guards would threaten us by saying: ‘¿Quieres ir al oyo?’ – ‘You want to go to the hole?’”

Another former Aurora detainee, Lourdes Argueta, wrote that she was assigned to clean the detention center’s medical unit. She wrote that her work involved “cleaning up blood, feces and urine” of other detainees.

Several of the detainees wrote that, when they asked GEO Group guards if they could be paid more, they were told the company was not allowed to increase their wage.

A spokesman for GEO Group said the company denies the lawsuit’s allegations and that the standards and pay for the voluntary work program are set by the federal government, not GEO Group.

“Our facilities, including the Aurora, Colo. Facility, are highly rated and provide high-quality services in safe, secure, and humane residential environments pursuant to the Federal Government’s national standards,” he said in a written statement to POGO.

This response echoes arguments the company made in 2014, when it filed a motion to dismiss the Aurora lawsuit. GEO Group noted then that the $1 per day rate was set by Congress decades ago, and that ICE includes it in the contracts it makes with companies like GEO Group.

ICE did not respond to POGO’s requests for comment on either the Aurora lawsuit or the agency’s detention center system in general.

A Systemic Issue

The Aurora lawsuit, while unprecedented in its scale, is only one of a growing number of lawsuits recently filed by detainees.

In 2006, a detainee in Tacoma, Washington, filed a lawsuit alleging that GEO Group failed to pay him all of the wages for work he did as part of the voluntary work program. The detainee alleged that the failure of payment was tantamount to slavery. A judge dismissed the case, saying that the detainee had submitted his complaint of non-payment too late, and that the detainee “was not compelled to work but participated in a voluntary work program.”

In 2015, a detainee in Boston filed a class action lawsuit against the local county sheriff’s department saying that he and other detainees should be paid Massachusetts minimum wage for participating in the voluntary work program. The detainee is one of thousands of ICE detainees who are held in local jails rather than in federal facilities.

And in June, detainees in San Diego filed a class action lawsuit against private detention center operator CoreCivic (formerly Corrections Corporation of America) alleging that they and thousands of other detainees were threatened with punishment—including solitary confinement and physical restraint—if they refused to participate in the voluntary work program. In addition to providing services for fellow detainees, the San Diego detainees say they also performed clerical work for CoreCivic, cleaned the medical staff’s offices, and helped cater meals for law enforcement events hosted by CoreCivic.

Detainees at other facilities have similar complaints about the voluntary work program, although they haven’t taken legal action.

In 2011, detainees at a CoreCivic-operated detention center in Georgia told the ACLU of Georgia that they were threatened with solitary confinement for not participating in the voluntary work program—an assertion that CoreCivic confirmed.

“Three weeks ago, some detainees who worked at the kitchen wanted to stop working. The guards told them that if they stopped working, they would be charged by the disciplinary board. The guards then tried to get them to sign a document,” Josue Cervantes told the ACLU. “The detainees refused to sign the document and shortly thereafter they were transferred from the blue to the orange unit for a couple days as punishment.”

The “orange unit” is another name for a segregation unit—essentially solitary confinement—where the sanitation was so bad some detainees referred to these units as “portable toilets.” CoreCivic told the ACLU that it investigated the incident and confirmed that it occurred. The company said it took action, such as counseling its guards.

And earlier this year, detainees in the Northwest Detention Center in Tacoma, Washington, made news when as many as 750 detainees staged a hunger strike in protest of their $1 per day wages and poor living conditions, The Seattle Times reported in April.

Villalpando of NWDC Resistance told POGO that, despite detainees’ widespread frustration with their wages, detainees often chose to participate in the voluntary work program—in fact, she said there is a waiting list for the program at the 1,575-person Tacoma facility. The reason? Detainees have few activities to fill their days while they wait for their immigration hearings.

According to ICE’s Performance-Based National Detention Standards manual, which was last updated in December 2016, this is one of the reasons the voluntary work program exists.

“The negative impact of confinement shall be reduced through decreased idleness, improved morale and fewer disciplinary incidents,” the manual says of the work program.

Villalpando told POGO that, in the Tacoma facility, detainees are allowed only one hour per day to work on their legal cases in the detention center library. Some detainees passed the time playing dominos—that is, until the detention center outlawed the game, according to Villalpando. And other detainees use discarded food wrappers to create art to decorate their “pods,” or living areas—until detention center guards almost inevitably pull down the artwork to throw it away, she added.

“All of this means people try to find something to do,” she said of the work program. “They [GEO Group] make you feel like you are the one requesting the job.”

The Business of Detention

As POGO previously reported, the majority of America’s detention centers are run by a handful of companies that are largely secretive about what goes on in these taxpayer-funded facilities. What’s no secret is how much money these companies earn.

CoreCivic and GEO Group are two of the largest private detention contractors in the country. In 2016, CoreCivic reported over $1.8 billion in revenue, while GEO Group reported over $2.1 billion, according to the companies’ official filings with the Securities and Exchange Commission.

A significant portion of the companies’ profits come from government contracts. CoreCivic was awarded nearly $1 billion in government contracts in 2015, while GEO Group was awarded $1.3 billion the same year.

And profits for these companies are up from 2015, which financial analysts attribute to President Trump’s campaign promise to be tough on people who violate immigration laws. 2017 may be an even better year for detention center companies, given that ICE agency awarded GEO Group a $110 million contract for a new detention facility outside of Houston in April.

Both GEO Group and CoreCivic told investors in early August that, despite the fact Customs and Border Protection apprehended fewer people than usual illegally crossing the U.S.-Mexico border at the beginning of 2017, the Administration’s proposed immigration policies will be good for business.

According to GEO Group CEO George C. Zoley, the company expects to win a contract by the end of the year to manage a 700-bed ICE facility in Florence, Arizona.

And CoreCivic CEO Damon Hininger told investors on a call that the Administration’s plan to increase immigration enforcement in the interior of the country means more opportunities for the company.

“…it is clear to us based on kind of mostly some of the numbers we are seeing, but also the feedback we are getting from our Federal partners that they are making us big investors,” Hininger said.

However, despite the sizeable government contracts these companies win, sources who spoke to POGO said GEO Group and CoreCivic wouldn’t be nearly as profitable—if at all—if it weren’t for the $1 per day detainee work program. The Aurora lawsuit alleges that detainees perform “vital functions” for the GEO Group facility. In fact, the facility employs only one full-time janitor who is not a detainee, the Associated Press reported.

ICE does not proactively disclose how many detainees participate in its voluntary work program, but The New York Times reported in 2014 that at least 60,000 detainees were part of the program the previous year.

While detention center companies looking to construct new facilities try to woo locals with the promise of jobs, the companies’ reliance on detainee labor means that many of the centers actually provide few jobs for locals, according to the Detention Watch Network.

Villalpando told POGO that the Tacoma facility only employs a few overworked, undertrained guards—many of whom live out of town.

And Jacqueline Stevens, a professor of political science and legal studies at Northwestern University and director of the school’s Deportation Research Clinic, told POGO, "Facilities hire a small number of guards through private security firms; they often complain about their own poor treatment.”

“The vast bulk of the labor running the facilities, including dining services, repairs, cleaning, painting, and even hair cutting is by those locked up for slaving wages of $1 to $3 [per] day or on threat of solitary confinement, not workers hired from the community," she said.

Stevens has extensively studied ICE’s voluntary work program and has successfully obtained documents that shed insights into it. Based on these documents, Stevens has calculated that, by paying detainees at the Aurora detention center in Colorado $1 per day—well below both the federal minimum wage of $7.25 per hour and Colorado’s recently increased minimum wage of $9.30 per hour—GEO Group saves itself over $4 million each year.

So what would happen if detention companies started paying detainees minimum wage? According to Sinha of the International Human Rights Law Clinic, detention companies would make significantly less money—but it might not be enough to shut them down. As long as the federal government continues to award these companies billions of dollars in contracts, the companies will continue to operate detention centers and build new ones.

“Their contracts are sizeable,” she said of detention companies. “They’ll still profit, but they’ll think twice.”

Recommendations

Now more than ever, Congress must conduct more oversight of ICE and its detention center system. Based on this investigation, the Project On Government Oversight recommends the following actions for Congress: