In the fall of 2019, the State of California enacted A.B. 32, which prohibits the operation of any private prison or detention facility in the state subject to a few limited exceptions. Both the GEO Group, Inc. and the United States sued California, claiming that A.B. 32 is unlawful as to private detention facilities operated for federal agencies, such as Immigration and Customs Enforcement (ICE), because A.B. 32 is preempted by federal law and violates the federal government’s immunity from state regulation.
However, the federal district court rejected GEO and the United States’ arguments as to ICE private detention facilities. The court held that neither within the Immigration and Nationality Act (INA) or any other statute has Congress has expressed a clear and manifest intent to permit ICE to contract with private prison companies. Geo Group Inc., et al. v. Newsom, 493 F.Supp.3d 905, 937-38 (S.D. Cal. 2020). Geo Group and the United States have appealed that decision to the Ninth Circuit.
Along with the ACLU and its California affiliates, the National Immigrant Justice Center filed an amicus brief at the Ninth Circuit in support of California and A.B. 32. In the amicus brief, we demonstrate that Congress has never authorized ICE to contract out its detention responsibility to private prison companies based on the text, structure, and history of the INA.