By Jonathan Booth

Privately managed detention centers hold the majority of detained immigrants in Immigration and Customs Enforcement (“ICE”) custody.1 Coerced detainee labor in these for-profit facilities is commonplace. The practice contributes significantly to the financial viability of CoreCivic and GEO Group, the two corporations that manage most ICE detention centers, but it violates the prohibition on forced labor contained in the 2000 Trafficking Victims Protection Act (“TVPA”).2 Despite a growing field of scholarship on “immigration” and proposals to abolish immigration detention, or on its extraterritorial application.7 Because practitioners, rather than scholars, were the first to recognize that the TVPA’s prohibition of forced labor applies to private detention centers, there has been little scholarly analysis of the application of the TVPA to forced labor within detention facilities. This Article provides the first scholarly assessment of a wave of pending class action lawsuits challenging forced labor in privately managed ICE facilities under the TVPA. It concludes that such lawsuits are likely to succeed, given the facts known about conditions in for-profit immigrant detention facilities and the broad text and favorable legislative history of the TVPA. If the plaintiffs win a favorable jury verdict or a far-reaching settlement, the cases may cause fundamental changes to the current system of mass immigration detention. Part I of this Article examines the rise of for-profit detention in the United States and shows that detaining immigrants is now a central business of for-profit detention corporations. Next, Part II describes the labor policies within ICE detention that plaintiffs in these lawsuits allege amount to forced labor and thus violate the TVPA. Part III turns to the TVPA itself and analyzes its text, legislative history, and applicability to class actions. Part IV argues that its text and legislative history demonstrate that the TVPA covers forced labor claims within for-profit immigrant detention facilities and that such claims, if successful, could transform the business of detaining immigrants. Finally, Part V argues that publicly available information, including that revealed through discovery in these lawsuits, makes it likely that plaintiffs will prevail at trial.   

35 Georgetown Immigration Law Journal 573 (2020)