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Fifth Circuit Holds Private Immigration Detention Facilities Are Subject to Trafficking Victims Protection Act’s Prohibition Against Coerced Labor

by Matt Clarke

After a trio of federal court rulings in 2021 regarding the labor of immigrant detainees, the first one remained the clearest victory so far for plaintiffs. That was a decision on January 20, 2021, by the U.S. Court of Appeals for the Fifth Circuit, holding that detainee work programs at federal immigration detention centers operated by private companies are subject to the Trafficking Victims Protection Act of 2000 (TVPA).

Another decision that followed on March 5, 2021, presented the clearest loss, when a three-judge panel for the Fourth Circuit ruled that immigrant detainees were not “employees” of Tennessee-based CoreCivic covered under the Fair Labor Standards Act (FSLA) at the New Mexico detention facility the firm operated for federal Immigrations and Customs Enforcement (ICE), so they were not owed minimum wage. [See: PLN, Dec. 2021, p.24.]

That was different from a verdict reached by a jury in U.S. District Court for the Western District of Washington on October 27, 2021, which will be the biggest win of all if it survives appeal. In that case Florida-based GEO Group, a CoreCivic competitor that operated a detention center in Tacoma for ICE, was ordered to pay $17.3 million in back wages to immigrant detainees forced to work in the facility for just $1 per hour. [See: PLN, Dec. 2021, p.26.]

Before these two rulings, the Fifth Circuit was the first in 2021 to enter the fray over the work immigrant detainees perform, though the scope of its ruling was narrower. The lead plaintiff in the case, Martha Gonzalez, was held for ICE in a Texas detention facility operated by CoreCivic. There she was required to work in a variety of jobs under the facility’s “voluntary” work program, one she maintained was not voluntary but coerced with threats of solitary confinement, physical restraints, and denial of “basic human needs such as personal hygiene products.”

In a class-action complaint filed in U.S. District Court for the Western District of Texas, Gonzalez alleged the coerced labor violated TVPA, which imposes criminal penalties on “‘[w]hoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of’ threats, force, restraint, or threat of harm or abuse” 18 U.S.C. § 1589 (a), (d). Section 1595 permits “an individual who is a victim of a violation ‘to bring a civil action against the perpetrator to recover damages.’” That is what Gonzalez did.

Gonzalez said she was coerced into cleaning the detention facilities, cooking meals for company events, doing clerical work, working as a barber, maintaining landscaping and performing other labor. The “voluntary” labor program was authorized by Congress at 8 U.S.C. § 1555 and implemented by ICE in its Performance-Based National Detention Standards (PBNDS) 2011 § 5.8, which require facilities holding ICE detainees to have a voluntary work program that pays the detainees at least $1 per day for their labors.

Gonzalez acknowledged she was paid between $1 and $2 per day. But pay was not the issue; the voluntariness of the work was. PBNDS specifically requires that the work programs be voluntary, and Gonzalez alleged that CoreCivic’s were not.

CoreCivic moved to dismiss the lawsuit on the grounds that TVPA does not regulate “labor performed by immigration detainees in lawful custody.” The district court denied the motion after concluding that the plain terms of the TVPA cover such immigrant detainee labor. However, the court granted CoreCivic’s motion to certify for interlocutory appeal the question of whether TVPA applies to work programs in federal immigration detention facilities.

Taking up that interlocutory appeal, the Fifth Circuit agreed with the district court, holding that the term “whoever” in the law applied to CoreCivic and that CoreCivic did “obtain” the labor.

In its decision, the Court rejected CoreCivic’s claim that applying TVPA would require the courts to apply it to parents who compel their children to perform household chores. As Judge James Ho, an appointee of former President Donald J. Trump (R), replied, “By that logic, a thief who steals a toy from a child could avoid a larceny conviction by claiming that no one would convict a parent for taking his child’s toy away for misbehavior.”

The Court also rejected the company’s claim that Congress intended TVPA to apply only in the context of international human trafficking, holding that, “[b]ecause on its face §1589 unambiguously protects labor performed in work programs in federal immigration detention facilities, the ‘judicial inquiry is complete.’” It thus affirmed the district court’s decision.

A dissenting judge on the three-judge panel pointed out that Gonzalez had failed to allege that the work program violated PBNDS and said her lawsuit should have been dismissed for that reason. However, Judge Ho noted for the majority that such pleading defects are easily corrected by amendment. Further, the dissenting judge’s analysis clearly showed a lack of understanding, he said, of the difference between being coerced into cleaning a “pod” (a modern version of a cellblock), which is prohibited by TVPA, and being required to clean private spaces in your own cell, which is required under PBNDS. See: Gonzalez v. CoreCivic, Inc., 986 F.3d 536 (5th Cir. 2021).

The case has now returned to the district court, while GEO Group has appealed the Washington ruling to the Ninth Circuit (the Fourth Circuit denied a petition to rehear the case from New Mexico en banc). It was a small but apparently durable victory for immigrant detainees in a long battle waged by private companies contracted by ICE to treat them the way prisoners are treated, as a source of slave labor to be exploited. 

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Related legal case

Gonzalez v. CoreCivic, Inc.