ICE may circumvent California's ban on private immigrant detention centers

Adelanto ICE Processing Center, operated by GEO Group

Nov. 9, 2019 5 AM PT

Last month, California became the first state to kick out privately run immigrant detention centers. A new law that also bans private prisons prohibits new contracts or changes to existing ones after Jan. 1 and phases out existing detention facilities entirely by 2028.

But on Oct. 16, five days after Gov. Gavin Newsom signed Assembly Bill 32 into law, U.S. Immigration and Customs Enforcement officials posted a solicitation — a request for offers — on the Federal Business Opportunities website for at least four detention facilities around the state.

Democratic state legislators and advocates for immigrants say that ICE’s action is a blatant attempt to circumvent the law in order to continue detaining immigrants in California. They’re now calling for answers from the agency, which has remained tight-lipped about the situation.

“Let’s be clear: By rushing through new contracts before California’s ban takes effect, ICE is violating the spirit of California law and risks wasting taxpayer dollars in an attempt to lock away even more human beings,” said Sen. Kamala Harris. “We need to fight back.”

Private prisons are a multibillion-dollar industry in the U.S. and hold the vast majority of immigrants who are detained for deportation. Facilities in California hold 8% of the 49,000 people currently in ICE custody.

Three separate companies manage four private facilities between Bakersfield and Calexico. Together, they have space for nearly 4,000 immigrants. Contracts for each of the facilities end next year and under AB 32 could not be renewed.

With 1,940 beds, the Adelanto ICE Processing Center in San Bernardino County is the second-largest adult detention center in the nation. GEO Group runs Adelanto and the Mesa Verde ICE Processing Center near Bakersfield. CoreCivic operates the Otay Mesa Detention Center in San Diego. Management & Training Corp. runs the Imperial Regional Detention Facility in Calexico.

CoreCivic is planning a 500-bed expansion of the Otay Mesa facility by the end of this year, which would bring it to nearly 2,000 beds.

ICE’s recent request for detention centers in California appears to closely match the existing facilities. According to the solicitation notice, officials were looking for a facility within 50 miles of Calexico to hold at least 700 detainees; another within 50 miles of San Diego to hold up to 1,400 detainees; a third within 75 miles of Bakersfield to hold up to 1,150 detainees; and a fourth within 75 miles of Los Angeles to hold up to 1,950 detainees.

ICE later amended the notice to increase the beds near San Diego to 2,100 and near Los Angeles to 2,800, bringing the total request to 6,750 beds around the state. Proposals were due Monday, after less than three weeks.

The timing contrasts sharply with a pre-solicitation notice posted by ICE on Sept. 9 seeking three contract detention centers in Texas. ICE expects to post the actual solicitation on Nov. 12.

The California notice specifies that facilities must be “turnkey ready” by the start of the contract and says that, “due to mission needs, proposals for new construction will not be accepted.” Officials also state that they expect to award the contracts to at least three companies and that contracts will last five years with two five-year extension options.

A GEO Group spokeswoman said the company does not comment on government procurements. But in an earnings call Tuesday posted to the company’s website, Chief Executive George Zoley said he expects new long-term contracts in California to start in mid-December.

Zoley said that ICE’s solicitation “involves a rebid of existing contracts at our Adelanto and Mesa Verde ICE processing centers as well as other contractor-operated facilities in California. It also allows for other existing facilities to be proposed in those three areas of the state.”

In response to a question about how AB 32 will affect GEO’s operations, Zoley said that it restricts “any state or federal facilities to their contract terms effective January 1.... So if you have a contract that’s in place before the end of this year, it can go the full length of its contract term.”

ICE did not answer questions about the solicitation. Spokeswoman Lori Haley said it’s crucial for the agency to ensure that there are enough beds to meet demand.

“The agency utilizes a vast and varied system of detention bed space to house detainees, and is continually reviewing its detention requirements and exploring options that will afford ICE the operational flexibility needed to house the full range of detainees in the agency’s custody,” she said.

The American Civil Liberties Union filed a Freedom of Information Act request last week seeking communications between ICE and the three companies operating detention centers in California.

“In seeking these records, ACLU SoCal aims to inform the public on an important matter of public concern: the respect shown by private companies and DHS/ICE toward California’s public policy against the operation of private prisons and detention facilities,” lawyers wrote in the request.

Immigrant advocates say that ICE’s solicitation is tailored to eliminate real competition, particularly because of the short time frame, specific location requests and requirement that facilities be ready to open by the start of the contract. Those terms essentially limit the bidding to the companies that already operate detention facilities in California, say advocates who are calling for federal oversight.

An ICE spokesman previously said that the agency would continue detaining immigrants in California as usual and would simply transfer them to facilities out of state.

ICE has a network of temporary holding facilities that don’t have beds or showers where detainees can be placed during the day. Those aren’t affected by the new California law.

Hamid Yazdan Panah, an immigration lawyer in the Bay Area, said it would be logistically difficult and expensive for ICE to transfer every immigrant detained in California to other states. He thinks the solicitation illustrates the agency’s realization that AB 32 will limit the number of people it can detain.

“They pick people up at certain points, have to process them and get them to a detention facility usually by evening,” he said. “The reality is they have a lot of protocols they have to go through and manpower considerations they have to deal with.”

Darwin Hindman, a government contract law professor at Vanderbilt University, said it looks as though ICE is trying to undermine the intent of California’s private prison ban. Even so, he said, that’s not necessarily illegal.

Hindman said that the procurement process is heavily regulated with rules for transparency and fair dealing. Agencies cannot write such narrow specifications that only one or a small set of bidders could possibly fill the need.

But even if ICE has violated contracting rules, it’s unclear how proponents of AB 32 could stop the agency from fulfilling the new solicitation. That’s because under the procurement system, only another potential bidder can protest an improper solicitation.

“The system is made for self-enforcement because the people who are most motivated are the people who didn’t win the award,” Hindman said. “But in this case, you have sort of the perverse situation where competitors would feel the same way as the people who won the contract because anyone who’s in the business is not going to be happy that California has turned off the flow of public dollars.”

Assemblyman Rob Bonta (D-Alameda), who wrote the bill, called the solicitation a manipulative attempt by ICE to game the system.

“I’m not prepared to allow ICE to improperly violate AB 32 and hurt Californians,” he said.

How exactly Bonta and other state leaders will ensure that, he doesn’t know yet.