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Tenth Circuit upholds class certification of immigration detainees forced to labor

On February 9, 2018, the Tenth Circuit court of appeals upheld the certification of two classes of immigration detainees who were forced by GEO Group to labor without pay or to "volunteer" to labor for $1 per day.

Nine immigration detainees held at the Aurora Detention Facility, a 1,500-bed facility operated by the GEO Group for U.S. Immigrations and Customs Enforcement, filed a federal civil rights lawsuit alleging their being forced to labor to clean common areas without pay violated the Trafficking Victims Protection Act, 18 U.S.C. § 1589, and their being paid $1 a day for "voluntary" labor in other areas of the facility violated the Colorado unjust enrichment law, a common law equitable theory of recovery. They moved for certification of two classes: (1) all detainees housed at Aurora in the past 10 years; and (2) all detainees who participated in Aurora's voluntary work program in the past three years. The classes total about 67,000 people.

The court certified both classes. GEO filed an interlocutory appeal.

The Tenth Circuit noted that its decision was limited to whether the certification of a class was an abuse of discretion. The lawsuit centered on the facility's Sanitation Policy and Voluntary Work Program (VWP).

Under the Sanitation Policy, detainees were required to clean the common areas of their housing units on a rotating basis without compensation. Under this policy, refusing to perform cleaning assignments could result in a range of disciplinary sanctions, including criminal charges, solitary confinement for up to 72 hours, loss of commissary, loss of job, restriction to the housing unit, reprimand, or warning.

Detainees wishing to participate in the VWP performed such jobs as food services, painting, laundry services, cutting hair, and stripping and waxing floors. They worked from two to eight hours a day and received $1 per day.

The Tenth Circuit held that both classes satisfied the requirements of commonality, typicality, superiority and predominance. Thus, the district court did not abuse its discretion by certifying the classes. Further, the court held that each class had common questions that allowed for class-wide proof of causation from common circumstantial evidence and the fact that damages would have to be individually calculated did not defeat class certification. Therefore, without making any determination on the merits of the case, it affirmed the certification of both classes.

"This ruling shifts the power from a huge corporation to vulnerable detainees," according to Washington, D.C., attorney David Lopez, who represents the plaintiff class. "With that power, detainees will be able to challenge long-standing practices that have allowed GEO to exploit detainee labor while pocketing taxpayer dollars."

See: Menocal v. The GEO Group, Inc., F.3d (10th Cir. 2018), No. 17-1125. Additional sources:

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