Thirteenth Amendment Litigation in the Immigration Detention Context

Jennifer Safstrom February, 2021

Abstract

This Article analyzes how the Thirteenth Amendment has been used to prevent forced labor practices in immigration detention. The Article assesses the effectiveness of Thirteenth Amendment litigation by dissecting cases where detainees have challenged the legality of labor requirements under the Trafficking Victims Protection Act. Given the expansion in immigration detention, the increasing privatization of detention, and the significant human rights implications of this issue, the arguments advanced in this Article are not only currently relevant but have the potential to shape ongoing dialogue on this subject.

Introduction

Across the country, detainees in the custody of the United States Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”) allege they are being coerced into performing work without proper compensation, often under the threat of punishment or under other forcible conditions.¹ The immigrant plaintiffs in one such case— Menocal v. GEO Group, Inc. —filed a lawsuit alleging violations of federal law prohibiting forced labor by the for-profit company managing and operating the facility.² The complaint asserts that detainees were forced by GEO Group (“GEO”) to work for either token pay ($1/day) or no pay to perform the following range of tasks:

Plaintiffs scrubbed bathrooms, showers, toilets, and windows throughout GEO’s Aurora facility. They cleaned and main-tained GEO’s on-site medical facility, cleaned the medical facility’s toilets, floors and windows, cleaned patient rooms and medical staff offices, swept, mopped, stripped, and waxed the floors of the medical facility, did medical facility laundry, swept, mopped, stripped, and waxed floors throughout the facility, did detainee laundry, prepared and served detainee meals, assisted in preparing catered meals for law enforcement events sponsored by GEO, performed clerical work for GEO, prepared clothing for newly arriving detainees, provided barber services to detainees, ran the facility’s law library, cleaned the facility’s intake area and solitary confinement unit, deep cleaned and prepared vacant portions of the facility for newly arriving detainees, cleaned the facility’s warehouse, and main-tained the exterior and landscaping of the GEO building, inter alia .³

The detainees in these facilities allege that they were forced to do various types of labor, including administrative, janitorial, housekeeping, landscaping, and maintenance work. The complaint also alleges that individuals who refused to work were subject to threats of discipline including punishment in solitary confinement if they failed to comply.⁴ This scheme of underpayment or nonpayment “unjustly enriched [the company] when it paid its employees $1 per day, or nothing at all, for their labor.”⁵

This Article seeks to analyze how legislation developed pursuant to the Thirteenth Amendment can be used to prevent forced labor in immigrant detention settings. In addition to analyzing the effectiveness of these legal challenges brought under the Trafficking Victims Protection Act (“TVPA”), the Article assesses how these arguments can impact current litigation, legislation, and public action across the country.

Given the expansion in immigration detention, the increasing privatization of detention, and the significant human rights implications of this issue, this Article is critical in the current moment and can be used to shape ongoing dialogue on this subject. This Article assesses the role that Thirteenth Amendment litigation in the immigration detention context can play in rectifying inequities at the intersection of race, immigration, and labor.

I. Contextualizing the Thirteenth Amendment in the Immigration Detention Setting

A. The Immigration Detention Context

In assessing whether the Thirteenth Amendment should be used in the immigration detention context, it is key to understand the circumstances in which it would be applied and who would be impacted. The immigrant detainee population is primarily comprised of people of color, more of whom are being held in detention and are being detained for longer periods of time than ever before.

Immigrants are mostly people of color: the percent of white, non- Hispanic immigrants has dropped from nearly fifty percent in 1980 to under twenty percent in 2018.⁶ According to Pew Research Center data, the top five countries of origin for immigrants to the United States in 2018 were Mexico, China, India, Philippines, and El Salvador.⁷ Moreover, per data collected by Freedom for Immigrants, the top countries of birth for immigrants in detention are Mexico, El Salvador, Honduras, and Guatemala.⁸ This data reflects the changing demographics of the immigrant population.⁹

The length of immigration detention is also increasing. In some cases, ICE detains immigrants while pursuing deportation.¹⁰ Reports from the TRAC Immigration Project, which systematically reviews federal government data, indicate highly variable lengths of detention among detainees. In 2012, of 1,500 individuals detained, 40 percent had their case “dispositions occur[] very quickly, within three days,” and 70 percent had their “ICE custody ended during the first month.”¹¹ Short detention durations can be attributed to the number of individuals who “did not contest their deportation”¹² and may “indicat[e] that ICE did not need to obtain court approval to deport these individuals.”¹³ Even in the midst of increasingly lengthy detention periods, the American Immigration Council found “the average detention length was consistently and substantially longer in privately operated facilities” than at those that were publicly-operated.¹⁴

Differences in detention duration are especially evident when making state-by-state comparisons. In California, 50 percent of individuals “spent less than a day in ICE custody and nearly three quarters spent three days or less in lockup.”¹⁵ In South Carolina and Alabama, however, only three percent of immigrants “were detained for three days or less.”¹⁶ In states that detain individuals for longer periods of time, each day presents a new opportunity for unpaid labor to be requested. The population of detained immigrants has also increased steadily over the years from approximately 6,800 in 1994 to 49,500 in early 2019, rising about 625 percent over the last two and a half decades.¹⁷ Yet, it seems that even this may be a conservative estimate, as other reports suggest the immigration population in detention exceeds 55,000, which would be over a 700 percent increase since 1994.¹⁸

Reports from within these detention centers often reveal shockingly atrocious conditions. The management of these facilities often reflects an extreme lack of care,¹⁹ resulting in detainees’ inadequate access to medical care,²⁰ sexual abuse,²¹ and inhumane conditions of detention.²² Yet, the government’s lack of basic data tracking,²³ penchant for destroying records,²⁴ and decreased oversight²⁵ all allow these conditions to persist.

Yet, the expansion of the mass detention system likely comes as welcome news to the many American companies that profit from it. The chief executives of the private companies running these immigration facilities “speak of ‘improved occupancy rates’ as a perverse benefit of [ICE’s] practices, which heavily sweep in undocumented immigrants as ‘detainees.’”²⁶ DHS Homeland Security Advisory Council reported in 2016 that 65 percent of the detainee population resides in private facilities, while 25 percent are detained in public facilities like county jails, and only 10 percent of detainees reside in federally owned and directed facilities.²⁷ According to data compiled by the Urban Justice Center’s Corrections Accountability Project in 2019, as many as 72 percent of immigrant detainees are held in privately owned facilities.²⁸ As a result, “ICE spends more than $2 billion a year on immigrant detention through private jails.”²⁹ The two largest detention companies—GEO Group and Core- Civic, formerly Corrections Corporation of America—earned a combined $985 million from contracts with ICE in 2017.³⁰

This business is only expanding, as are the earnings. The staggering increase in immigration detention, both in terms of total numbers and length of confinement, perpetuates the “profit-driven incentivization for mass incarceration of immigrants.”³¹ These companies are planning and constructing additional detention facilities³² while detained individuals and advocacy groups continue to make allegations regarding the poor quality of care in these facilities.³³

Privatization also shields operators from scrutiny because “detention contractors are not subject to federal open records laws, civil service requirements, administrative law, constitutional requirements, and other legal checks that would otherwise apply to federal officials doing the same work.”³⁴ ICE is responsible for monitoring private facilities to ensure that they meet detention standards. The Inspector General of the Department of Homeland Security (“DHS”) reported that ICE has failed to “ensure adequate oversight” for these facilities, leaving some issues “unaddressed for years.”³⁵ When coupled with destructive public commentary that dehumanizes the individuals who are detained, these circumstances are likely to worsen detention conditions and result in further constitutional violations.³⁶

B. The Civil-Criminal Distinction

There are many similarities between the immigration and criminal detention settings, including poor conditions, gross lack of oversight, and systemic underfunding of detainee services.³⁷ However, the most salient parallels are the staggering racial disparities within these systems and the increasing trend toward privatization. Despite the many commonalities, the applicability of the Thirteenth Amendment is determined by one vital difference between these detention contexts.

Like the immigrant detention system, the prison population is “disproportionately men and women of color.”³⁸ People of color are overrepresented in detention³⁹ for several reasons, including the criminalization of poverty,⁴⁰ the over-policing of communities of color,⁴¹ and the historical vestiges of discrimination that have become institutionalized in our criminal legal system.⁴² This has given rise to “a prison system that incarcerates black people at more than five times the rate of white people.”⁴³

The second notable similarity to the immigration detention context is the rapid increase of the privatization of prisons, especially since the start of “the Trump Administration, [when] private prison companies have expanded their reach and consolidated their market share.”⁴⁴ The U.S. Department of Justice has acknowledged that “between 1980 and 2013, the federal prison population increased by almost 800 percent,” such that private prisons have profited from this expansion.⁴⁵

As a result of these trends, laborers in prison are predominantly people of color and are increasingly under the control of private companies that run these detention facilities. However, the Thirteenth Amendment exempts “punishment for crime whereof the party shall have been duly convicted” from its scope of protection.⁴⁶ Accordingly, “prison labor practices, from chain gangs to prison laundries, do not run afoul of the Thirteenth Amendment.”⁴⁷ Those confined within the jail or prison system pursuant to a criminal conviction are part of the Thirteenth Amendment’s loophole.⁴⁸ These individuals’ labor is either unpaid or underpaid.⁴⁹ This has been permitted for years, despite arguments advocating for improving the pay of incarcerated laborers.⁵⁰ Ultimately, those who are criminally detained are exempt from the Thirteenth Amendment and subject to a form of modern-day slavery.⁵¹

By contrast, immigration detention is civil in nature.⁵² Although some immigration offenses such as unlawful re-entry are criminal offenses with criminal penalties, many immigration violations are civil in nature.⁵³ Federal law recognizes this civil-criminal distinction in the immigration context. For instance, physical presence in the United States without proper authorization, such as overstaying a visa, is a civil—but not criminal—offense.⁵⁴ As such, the civil nature of immigration detention is important to note given the Thirteenth Amendment’s criminal detention exemption.

Thus, despite the many similarities between the individuals detained by the criminal legal and the immigration detention systems—including being subject to complete control in a confined setting within a system that has a disparate impact on communities of color—the fundamental distinction between the criminal versus civil nature of the detention impacts the applicability of the Thirteenth Amendment’s protections. As a result, though in many ways similarly situated in terms of confinement and vulnerability, those in the immigration detention are entitled to protections against forced labor that individuals who are incarcerated do not receive.⁵⁵

C. History and Legal Context of the Thirteenth Amendment and Trafficking Victims Protection Act

While the Thirteenth Amendment abolished slavery upon its ratification in 1865, the Amendment continues to serve an important function in preventing labor abuses.⁵⁶ The Amendment declares that “[n]either slavery nor involuntary servitude… shall exist within the United States, or any place subject to their jurisdiction,”⁵⁷ and “is enforceable against private parties in the absence of state action.”⁵⁸ Its expansiveness is neither limited in its geographic reach nor in who is required to comply with the prohibition; it is an unqualified denunciation of the conditions of forced labor “and not a declaration in favor of a particular people” such that the Amendment “reaches every race and every individual.”⁵⁹ The Thirteenth Amendment, like most provisions of the Constitution, applies to non-citizens, who are guaranteed “many of the basic rights, such as the freedom of religion and speech, the right to due process and equal protection under the law” by virtue of their personhood and presence in the United States, not their citizenship status.⁶⁰

Moreover, under Section 2, Congress has the “power to enforce this article by appropriate legislation.”⁶¹ This provision permits Congress to legislate against the “badges and incidents of slavery” that violate the Amendment.⁶² The expansive nature of the Thirteenth Amendment and the laws pursuant to Section 2 “are grounded in the view that slavery was not just the holding of black Americans to unpaid service, but an entire system of social relations designed to enforce a racial hierarchy… [and that] [t]hese practices denied the equal citizenship status, and implicitly the humanity, of African Americans.”⁶³ Thus, it is no surprise that the Thirteenth Amendment ban on slavery and involuntary servitude encompasses “a broad[] range of labor arrangements where a person is forced to work by the use or threatened use of physical or legal coercion.”⁶⁴ This includes not only situations in which a “servant believes that he or she has no viable alternative but to perform service for the master because of the master’s use or threatened use of physical force, such as where there is repeated use and threats to use physical force,” but also those means where “the law, legal process, or legal institutions [are used] to compel service.”⁶⁵

II. Litigation in the Immigration Detention Context

The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution—the Reconstruction Amendments—are animated by twin purposes: inclusion and equality. These amendments—banning slavery, extending citizenship, and safeguarding voting—were ratified in the wake of the Civil War in an effort to establish equality for Black Americans with the goal of ensuring full societal participation and political representation. “The Reconstruction Amendments were the first to include separate, express authorization for Congress to enforce their substantive commands” and “were the first amendments to the U.S. Constitution to enlarge federal power.”⁶⁶

The Thirteenth Amendment has been applied in the modern context against forced labor practices. Pursuant to its authority under Section 2 of the Thirteenth Amendment, Congress passed 18 U.S.C. § 1589 as part of the Trafficking Victims Protection Act to broaden the definition of the types of coercion that could intimidate or pressure an individual into forced labor. This expanded definition developed “in response to the Supreme Court’s decision in United States v. Kozminski , 487 U.S. 931 (1988), which interpreted § 1584 to require the use or threatened use of physical or legal coercion,” encompasses types of conduct that might result in forced labor.⁶⁷ Section 1589 prohibits:

[O]btain[ing] labor or services… (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threats of serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or legal process; or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.⁶⁸

Those who violate the § 1589 forced labor provision “shall be fined under this title, imprisoned not more than 20 years, or both.”⁶⁹

Code provision 18 U.S.C.A. § 1595 provides a civil cause of action for enforcement of any violation of this chapter, including § 1589. This subjects any individual who perpetrates a violation or who “knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter” to liability “in an appropriate district court of the United States” for “damages and reasonable attorneys fees.”⁷⁰

Advocates have filed lawsuits to remedy forced labor violations occurring in the immigration detention context pursuant to this provision.⁷¹ Some courts have found § 1589 to be a constitutional exercise of congressional authority under the Thirteenth Amendment’s broad enforcement power and command to enact “appropriate legislation,” while others have held this implicitly in applying the statute.⁷² This section compares the analysis and reasoning relied upon by various courts in assessing arguments pursuant to § 1589 as a mechanism for implementing the Thirteenth Amendment’s promise against slavery and indentured servitude, including its modern manifestation in the immigration context.⁷³

A. Textual Analysis

In Menocal v. GEO Group , plaintiffs Alejandro Menocal, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto Vizguerra, and Demetrio Valerga filed a class claim on behalf of current and former detainees of the Aurora Detention Facility, a private immigration detention center owned and operated by the GEO Group, Inc.⁷⁴ In this suit, detainees challenged both GEO’s “Housing Unit Sanitation Policy, which required all detainees to clean their common living areas[,] and the Voluntary Work Program, which compensated detainees $1 a day for performing various jobs.”⁷⁵ Under the sanitation policy’s “disciplinary system, detainees who refused to perform their cleaning assignments faced a range of possible sanctions, including: (1) the initiation of criminal proceedings, (2) disciplinary segregation—or solitary confinement—up to 72 hours, (3) loss of commissary, (4) loss of job, (5) restriction to housing unit, (6) reprimand, or (7) warning.”⁷⁶

Complainants asserted they were “forced… to clean the [housing units] for no pay and under threat of solitary confinement as punishment for any refusal to work.”⁷⁷ Those participating in the Voluntary Work Program allege they worked up to eight hours a day “serving food, cleaning the facilities, doing laundry, and stripping and waxing floors” for only $1 in compensation.⁷⁸

The Menocal plaintiffs’ argument rests on the plain text of the TVPA, which prohibits “knowingly provid[ing] or obtain[ing] the labor or services of a person by… means of force, threats of force, physical restraint, or threats of physical restrain.”⁷⁹ The threat or means of force “reaches any type of forced labor.”⁸⁰ In response, GEO cited U.S. v. Kozminski , a 1988 Supreme Court case that held “§ 1584 reaches only compulsion of services by use of physical or legal, as opposed to psychological, coercion.”⁸¹ GEO also relied on Channer v. Hall , a case from the Fifth Circuit, which “held that an immigration detainee forced to work in the kitchen under threat of solitary confinement was not subjected to involuntary servitude in violation of the Thirteenth Amendment.”⁸² Although the language at issue in Kozminski and Channer appear in the same title, the court held the “language at issue here [in § 1589] is thus broader… and intentionally so.”⁸³ The text of § 1589 of the TVPA, passed in its current iteration in 2008, was not constrained by the text or prior interpretations of different language reflected in § 1584, as the defendant detention center suggested. Moreover, the court determined that the legislative history of the provisions required a reading consistent with those put forth by Menocal and the other then-putative class representatives.⁸⁴ Thus, the court refused to dismiss the claim.⁸⁵

The plaintiffs and the court in Owino v. CoreCivic, Inc. relied on the same textual argument in Menocal . Plaintiffs Sylvester Owino and Jonathan Gomez were incarcerated at the Otay Mesa Detention Center facility where “they and other detainees performed a variety of tasks for Defendant ranging from scrubb[ing] bathrooms, showers, toilets, and windows to provid[ing] barber services to detainees to perform[ing] clerical work for CoreCivic” for $1 a day.⁸⁶ In Owino , “Plaintiffs respond[ed] that the plain text of the TVPA, including section 1589, proscribes any kind of forced labor even if that labor does not rise to the level of involuntary servitude as defined prior to enactment of the TVPA… [because] the plain meaning of the TVPA is broad enough to encompass their claims.”⁸⁷ The court in Owino found that the statutory language is unambiguous because “[t]he statute’s express terms do not limit who constitutes a victim of forced labor” and the provision “applies to any ‘person’—there is no limitation on the type or status of said person.”⁸⁸ However, the defendant asserted that they were not subject to the forced labor provision because there were no “trafficking” violations under the TVPA. The court dismissed this argument, finding that “the statute [does not] contain any language limiting application to those who traffic in per-sons or transport persons across national borders.”⁸⁹ The Owino court also acknowledged that the term “labor or services” was left undefined by the statute and, relying on Webster’s Third New International Dictionary, found the term’s ordinary meaning to include any “expenditure of physical or mental effort esp[ecially] when fatiguing, difficult, or compulsory” or “the performance of work commanded or paid for by another.”⁹⁰ As such, the allegations that “detainees cleaned, maintained, scrubbed, swept, and mopped floors, bathrooms, showers, toilets, and windows… are clearly within the definition of labor or service.”⁹¹ The court also acknowledged that threats of solitary confinement, the harm alleged by plaintiffs, was sufficient because “solitary confinement bears ‘a further terror and peculiar mark of infamy’” that even “the threat of solitary confinement, sufficiently alleges the means to achieve forced labor.”⁹²

The Owino case guided the development of Gonzalez v. CoreCivic, Inc ., a related matter in which plaintiffs Carlos Gonzalez, Juan Jose Merino-Rodas, Maribel Gutierrez-Canchola, Gladys Carrera-Duarte, and Jennye Pagoada-Lopez (“Gonzalez Plaintiffs”) sought to consolidate their case with Owino ’s.⁹³ These plaintiffs, like the complainants in Owino , “are former civil immigration detainees housed at Defendant’s Otay Mesa facility… [who] allege[d] that they received $1 or $1.50 a day for their labor at the detention facility” under threat of solitary confinement or loss of privileges.⁹⁴ The court denied the motion to consolidate and stayed the Gonzalez case “until it rules on class certification (or other dispositive motions, such as a motion to dismiss with prejudice) in Owino. ”⁹⁵

In another case, plaintiffs Wilhen Barrientos, Margarito Velazquez- Galicia, and Shoaib Ahmed sued CoreCivic for “forc[ing] detainees to work through threats of physical violence, solitary confinement, and deprivation of basic necessities” at the Stewart Detention Center in Georgia.⁹⁶ In August 2018, Barrientos and the other class members survived a motion to dismiss.⁹⁷ The district court in Georgia was not swayed by CoreCivic’s argument that the “TVPA is intended to apply narrowly to forced labor in the human trafficking context” and that applying the TVPA “to detainee work programs is ‘absurd’ and contrary to the intentions of Congress.”⁹⁸ The court found such an interpretation “ignores the plain language of the statute” and “misunderstands ‘the absurdity doctrine,’ which is a narrow exception to the fundamental principle that statutory interpretation must be anchored to the plain language of the statute.”⁹⁹ Consistent with the reasoning of other courts, the Barrientos court held that the plain reading of § 1589 indicates that “Congress placed no such restriction in the statute but chose instead to broadly prohibit ‘whoever’ from ‘obtain[ing] labor’ by any of the proscribed means.”¹⁰⁰ Thus, while the “lawful force necessary to detain the detainees cannot be the source for the TVPA claims,” individuals “cannot be forced into labor in violation of the TVPA.”¹⁰¹ The defendant sought to persevere under the absurdity doctrine, contending that deviation from the ordinary sense of the words is appropriate because otherwise the pur-ported interpretation “would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument.”¹⁰² The court here readily dismissed the applicability of the absurdity doctrine, noting that this canon does not provide license for “judicial revision of public and private texts to make them (in the judge’s view) more reasonable.”¹⁰³ Because “CoreCivic points to no particular word or phrase in the TVPA that it claims must be corrected” and “relies upon no language in the statute for this broad assertion,” the court declined to “re-draft” the statute to align with CoreCivic’s reading simply because the company “may find it absurd that Congress drafted the TVPA in such a way that it theoretically reaches the conduct alleged here.”¹⁰⁴

The lower court’s denial of defendant CoreCivic’s motion to dismiss was affirmed by the Eleventh Circuit, allowing the plaintiffs’ case to proceed, by finding that “the TVPA applies to private for-profit contractors operating federal immigration detention facilities.”¹⁰⁵ The panel’s holding, like the district court, found the TVPA’s “clear and unambiguous language… limits liability only by reference to the actions taken by a would-be violator” and “applies to anyone who knowingly obtains the labor or services of a person through one of the four illegal coercive means explicitly listed in the statute,” with “[n]o other limiting principle” in the plain text of the statute.¹⁰⁶

The federal district court in Texas rejected CoreCivic’s motion to dismiss a TVPA claim pursuant to § 1589 in Gonzalez v. CoreCivic, Inc. , arising out of complaints levied by Martha Gonzalez and those similarly situated at the Laredo Detention Center.¹⁰⁷ During her confinement, “Gonzalez contends that… she was paid only $1 or $1.50 per day to clean pods, work in the kitchen, sort laundry, and perform other duties under threat of punishment, including but not limited to lockdown and solitary confinement.”¹⁰⁸ Similar to the claims of other immigrant detainees, Gonzalez alleges that those who refused to work were threatened by CoreCivic “with confinement, physical restraint, substantial and sustained restrictions, deprivation, violation of their liberty, and solitary confinement, including the denial or delay of hygiene products.”¹⁰⁹ As a result, immigrants at the facility “performed labor for no pay or at a rate of compensation of $1.00 to $2.00 per day for work performed.”¹¹⁰ Here, too, the court found that “CoreCivic’s argument fails to identify any ambiguity in the language or exceptional circumstances to depart from the plain language of the statute” and, given that “[t]here is no ambiguity in section 1589,” refused to “read congressional findings into the statute.”¹¹¹ As in Owino , the court here also found “that solitary confinement, or the threat of solitary confinement, sufficiently alleges the means to achieve forced labor, and the court therefore concludes that Gonzalez has sufficiently stated a claim for a TVPA violation sufficient to overcome the motion to dismiss.”¹¹²

Although the Central District of California agreed in Novoa v. GEO Group that § 1589 applies to immigrant detainees, the court found the allegations lacked specificity to state a plausible pattern/practice claim. The court recognized that the text and scope of the TVPA applied to the defendants, holding that “[t]he plain language of § 1589 holds no limitation on who it applies to; indeed, subdivision (a) begins ‘whoever.’”¹¹³ The court heard the case of Raul Novoa, who filed a putative class action on behalf of himself and other similarly situated detainees. Novoa worked as a janitor and barber through the Voluntary Work Program over the course of the three years he was detained at the Adelanto facility.¹¹⁴ In his complaint, Novoa alleges that as a janitor he “worked four-hour shifts, up to seven days per week” and as a barber for “up to ten hours per day, seven days a week.”¹¹⁵ Novoa asserted that he spent his earnings on “food, bottled water, and hygiene products… among other necessities” and was threatened with “solitary confinement if he stopped working or encouraged other detainees to stop working.”¹¹⁶

Despite these assertions, the court ultimately concluded that “Plaintiff fails to provide more than conclusory assertions in support of his TVPA claim.”¹¹⁷ Though Novoa “alleged a scheme involving GEO withholding necessities for detainees and officer threats of solitary confinement or criminal prosecution for refusing to work, Plaintiff does not sufficiently substantiate these allegations” because he failed to “describe[] when he was threatened or who threatened him” or “allege any additional information about the withheld necessities to make his allegations more than conclusory assertions.”¹¹⁸ The court acknowledged that a forced labor claim could be alleged against GEO but held that the facts as pleaded in the complaint were insufficient to state a plausible claim that a “policy and uniform practice” of withholding necessities was occurring, instead granting Novoa leave to amend the complaint.¹¹⁹ This deviated from the holding in Owino and other cases, where plaintiffs’ allegations of “a specific punishment (solitary confinement) carried out or threatened to be carried out as a direct consequence for refusing to perform labor… while Plaintiffs were under the exclusive control of Defendant” were sufficient to state a claim.¹²⁰

In each of these cases, the court of record was able to articulate how the conduct alleged by immigrant detainees was violative of the plain language of § 1589 of the TVPA. Although the Novoa court did not allow the plaintiff to proceed, it acknowledged the underlying conduct, if sufficiently pleaded, would have likely given rise to a TVPA violation under the court’s analysis. In sum, the text of § 1589 has been sufficient for courts to allow claims to proceed and find that immigrant detainees’ claims satisfy the threshold requirements of this provision.

B. Legislative History

The defendants in these cases put forth three distinct arguments to assert that TVPA’s legislative history does not support its applicability in the immigration detention context. These arguments related to: (1) the appropriate scope of § 1589 in the context of appellate court precedent interpreting § 1584, (2) the need for trafficking or transnational conduct pursuant to § 1589, and (3) the applicability of § 1589 outside of the trafficking context. These arguments failed to exonerate private detention companies from compliance with § 1589 of the TVPA; rather, the legislative history indicated that forced labor in the immigration detention setting is within the reach of § 1589’s forced labor prohibition.

As referenced above, the defendants in these cases attempted to undermine the expansive reading of § 1589 by relying on U.S. v. Kozminski and Channer v. Hall as precedent that would cabin the reading of this TVPA provision. This is because Kozminski and Channer interpreted § 1584 to encompass “only compulsion of services by use of physical or legal, as opposed to psychological, coercion.”¹²¹ As the Menocal court noted, the Tenth Circuit’s analysis in U.S. v. Kaufman is persuasive.¹²² “The legislative history reveals that, in enacting § 1589, Congress sought to expand Kozminski ’s limited definition of coercion under § 1584, stating that ‘[s]ection 1589 will provide federal prosecutors with the tools to combat severe forms of worker exploitation that do not rise to the level of involuntary servitude as defined in Kozminski .’”¹²³ Thus the plaintiffs here properly “argue[d] that § 1589 should not be interpreted similarly to § 1584 because Congress enacted § 1589 in order to broaden the narrow definition of coercion adopted by the Supreme Court in Kozminski .”¹²⁴

The Southern District of California came to the same conclusion, holding that “[h]ad Congress intended to limit § 1589 to trafficking or transnational crime it could have done so; indeed, other sections of the TVPA contain the limiting language Defendant urges the Court read into § 1589.”¹²⁵ In support of this assertion, the Owino court referenced § 1591’s prohibition against “[s]ex trafficking of children or by force, fraud, or coercion,” which has “an explicit interstate or foreign commerce requirement.”¹²⁶ The court also distinguished § 1584’s restriction against “[w]hoever knowingly and willfully holds to involuntary servitude… any other person for any term, or brings within the United States any person so held.”¹²⁷ Accordingly, the court held that “[t]he lack of similar language in section 1589 reinforces the conclusion that there is no limitation on who constitutes a ‘person’ for purposes of section 1589” and its applicability under the following circumstances.

Finally, the defendants argued that “the TVPA is inapplicable because its purpose was to prevent human trafficking, and cases exclusively apply the TVPA to trafficking persons for labor and/or sex.”¹²⁸ In quarreling over § 1589, private detention companies argue that “applying the TVPA here would go beyond the intent and purpose of the statute, which was to prosecute and deter the trafficking of persons over geographic spaces.”¹²⁹ The court in Owino responded by analogizing to United States v. Callahan , a case where “defendants argued that the TVPA’s legislative history was passed to combat international trafficking in human beings and Congress did not intend to criminalize their conduct.”¹³⁰ In Callahan , the court found that the plain language was not limited to vic-tims who were immigrants or sex workers, and the court could not read in such a limitation when “the language of the statu[t]e did not include such a restriction.”¹³¹ Similarly, the Eleventh Circuit in Barrientos “d[id] not find a private government contractor’s obtaining forced labor through actual or threatened force, restraint, or serious harm to be so far removed from the purpose Congress identified as to cause us to look beyond the plain statutory language” and did not “justify a departure from the principle that [the court] should give general terms their general meaning.”¹³² Thus, despite the fact the congressional findings all focused on the evils of trafficking in persons, because the “statute merely pro-scribes knowingly providing or obtaining labor through defined means… [t]here is no basis for Defendant’s proposition that a federal detention center run by a private entity is excluded from the reach of the TVPA.”¹³³

The defendants’ attempted reliance on the TVPA’s legislative history failed them in these cases. The arguments attempted to elevate congressional intent over the plain language, but even so, failed to account for the interpretations of these legislative findings that support the plain-tiffs’ arguments regarding the applicability of § 1589 to the civil immigration detention setting.

C. Inapplicability of the Civic Duty Exception

The defendants in these cases also argued that the civic exception to the Thirteenth Amendment supported their claims and permitted immigrant detainees’ labor. This exception, as articulated in Butler v. Perry , states:

[T]he 13th Amendment declares that neither slavery nor involuntary servitude shall exist… It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.¹³⁴

Defendants relied on the judicially-created exception to the Thirteenth Amendment to hold that “the federal government is entitled to require a communal contribution by an [immigration] detainee in the form of housekeeping tasks.”¹³⁵ GEO cited to Fifth Circuit precedent in Channer to argue not only that § 1589 should be interpreted narrowly by drawing upon § 1584, but that the civic duty exception applied to § 1589 as it did to the other provision within the chapter.¹³⁶ However, as the court in Menocal found, “Defendants have cited no authority for reading a civic duty exception into § 1589, or for applying such an exception to a private, for-profit corporation under contract with the government.”¹³⁷ In Menocal the Tenth Circuit affirmed the district court’s denial of the defendants’ motion to dismiss.¹³⁸

It is antithetical to apply the civic duty exception to non-citizens. Requiring individuals who are being detained in preparation for possible removal “from the country precisely because they are not citizens… to perform the duties of citizenship without reaping its most fundamental benefits” is inapposite.¹³⁹ The courts’ analysis of the applicability of the civic duty exception was correct for two main reasons.

First, the private corporate defendants impermissibly argued for the civic duty to apply, as it is a defense that only the government can invoke and does “not apply to a contractor such as CoreCivic” or GEO.¹⁴⁰ This reasoning was acknowledged by the Novoa court, which held that cases where the civic duty exception was recognized “had a direct government nexus—government service or work at government-run facilities.”¹⁴¹ Because CoreCivic was unable to cite “any authority that the civic duty exception can apply to a privately run facility or an instance where a court did so,” and given that “a private entity contracting with the federal government is not necessarily a federal agent,” the court held the civic duty exception was inapplicable.¹⁴² The Owino court came to the same conclusion in deciding that the defendant could not avail itself of the “civic duty exception to the Thirteenth Amendment’s prohibition on involuntary servitude whereby state or federal governments could compel their citizens, by threat of criminal sanction, to perform certain civic duties.”¹⁴³ Citing Menocal , the court reiterated that defendants failed to put forth any authority that would allow the court to “read a civic duty exception into § 1589, or… apply[] such an exception to a private, for-profit corporation under contract with the government.”¹⁴⁴

Second, even if these corporate entities qualified as government agents such that they would qualify for the civic duty exception, the exception would not apply in these circumstances. The allegations of forced labor in these cases extend far beyond the situations where a civic duty has been recognized, such as jury duty and military conscription.¹⁴⁵ Labor in the immigration detention context is not insulated by the civic duty exception, which distinguishes those “duties which individuals owe to the state from the Thirteenth Amendment’s prohibitions.”¹⁴⁶ Applying this exception would also ignore the facial claims asserted by the complainants. As the Novoa court reasoned:

“[e]ven assuming the civic duty exception applies, Plaintiff has alleged he was a barber, which appears to exceed the housekeeping responsibilities a detainee may be required to perform. Moreover, what duties and tasks the detainees were compelled to undertake and whether these assignments amounted to more than general housekeeping tasks are factual issues.”¹⁴⁷

Accordingly, it would twist the civic duty exception past the point of recognition if this conduct, especially when undertaken by private actors, was found to be protected under this exception to the Thirteenth Amendment.

D. Appropriateness of Class Certification

The ability to file a TVPA claim as a class action suit could benefit the prospective plaintiffs, impact the scope of relief, and materially impact litigation. Federal Rule of Civil Procedure 23 sets forth the threshold requirements for a class action lawsuit and entails a showing that:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.¹⁴⁸

These class certification requirements—referred to as the require-ments for numerosity, commonality, typicality, and adequacy, respectively—ensure that the class claims can move forward.¹⁴⁹ Additionally, under Rule 23(b)(3) a class action must satisfy two additional requirements: “questions of law or fact common to class members [must] predominate over any questions affecting only individual members” and a class action must be “superior to other available methods for fairly and efficiently adjudicating the controversy.”¹⁵⁰ Referred to as the predominance and superiority requirements, these additional criteria provide the final hurdle for claimants seeking class certification.¹⁵¹

The Tenth Circuit, in affirming the holding of the district court in Menocal , conducted a thorough analysis of class certification pursuant to Rule 23.¹⁵² Although GEO only challenged the commonality and typicality requirements, the court did not limit its analysis to those contested grounds.¹⁵³ The court found the commonality requirement was satisfied because there were common questions of law and fact, including “(1) whether the Sanitation Policy constitutes improper means of coercion under § 1589, (2) whether GEO knowingly obtain[s] detainees’ labor using [the Sanitation Policy], and (3) whether a civic duty exception exempts the Sanitation Policy from § 1589.”¹⁵⁴ As such, the class “[r]epresentatives have demonstrated the existence of common questions that can resolve issues central to the validity of its TVPA claim in one stroke.”¹⁵⁵ The typicality requirement was satisfied because the class asserted “that GEO knowingly obtained class members’ labor by means of the Sanitation Policy, which threatened—or was intended to cause them to believe they would suffer—serious harm or physical restraint if they did not fulfill their cleaning assignments.”¹⁵⁶ The class met the superiority requirement because individual “class members would have to overcome significant hurdles to adjudicate their individual claims,” would “have little interest[ ] in individually controlling the prosecution or defense of separate actions,” and “the putative class members reside in countries around the world, lack English proficiency, and have little knowledge of the legal system in the United States.”¹⁵⁷ Finally, the class also survived Rule 23’s predominance requirement because “(i) the causation element is susceptible to generalized proof and thus cannot defeat class certification, and (ii) individual damages assessments would not predominate over the class’s common issues.”¹⁵⁸

Under this analysis, class certification was appropriate in these circumstances as the best means to vindicate the rights of the complainants and ensure judicial economy. This strategy also allowed the litigants to benefit from collective action, including the synergy of resources, to achieve success on the merits while promoting judicial efficiency.¹⁵⁹

III. Impact of Thirteenth Amendment Forced Labor Litigation Outside of Court

These litigation efforts across the country have established new precedent and expanded the context in which the Thirteenth Amendment is applicable. With the unparalleled expansion of immigration detention, these lawsuits are key drivers of reform and should be used to inform and propel other advocacy efforts.

A. Legislative

There are legislative efforts on both the state and national levels that can complement advocacy in the courts. Currently, twenty-two states do not house individuals in for-profit prisons. These states, under both Democratic and Republican control, prohibit private, for-profit facilities. Additionally, three states—Nevada, Illinois, and California—passed legislation in 2019 to ban for-profit facilities.¹⁶⁰ In California alone, this legislation will ultimately close three private prisons and four private detention centers, impacting over 5,400 people currently confined in those facilities.¹⁶¹ Some of these laws have faced significant public criticism and legal challenges. Recent legislation has faced opposition from some advocates for not being sufficiently progressive and robust, while simultaneously facing resistance from prison companies for being overly stringent.

For example, California’s law has been criticized as insufficiently robust. Advocates fear that loopholes in the California law will allow private facilities to continue operating under the legislation’s broad carve-outs.¹⁶² Specifically, AB 32 does not apply to: (1) “any facility providing educational, vocational, medical, or other ancillary services to an inmate,” (2) facilities that “provide housing for state prison inmates in order to comply with the requirements of any court-ordered population cap,” or (3) “any privately owned property or facility that is leased and operated” by a law enforcement agency.¹⁶³ The danger of these caveats is evident when compared with Nevada’s law, which prohibits “contracts with any private facilities that provide services like housing and custody after July 1, 2022, with no exemptions.”¹⁶⁴

In addition to the shortcomings identified by advocates, California’s law is also being challenged in court by private prison companies who find the law overly restrictive. GEO Group filed suit in the U.S. Southern District of California alleging AB 32 would unlawfully undermine enforcement of criminal and immigration law.¹⁶⁵ According to the lawsuit, “GEO has invested more than $300 million in acquiring, construct-ing and outfitting the facilities it operates” and would stand to “lose more than $4 billion in capital investment and future revenue over the next 15 years.”¹⁶⁶ Moreover, AB 32 has been challenged by the Trump Administration in separate litigation filed by the Department of Justice, U.S. Attorney for the Southern District of California, and other federal officials. This lawsuit claims “that AB 32 violates the supremacy clause of the U.S. Constitution if applied against the federal government, contending that federal agencies have the power to decide how they [wi]ll house prison-ers and detainees without interference from state governments.”¹⁶⁷ Although the outcome of this litigation is uncertain, efforts to curtail millions of dollars in contracts to these facilities pose a threat to the operations and financing of these companies.

Legislative changes adopted by states, if implemented at the federal level, would also be significant in curtailing incentives for private prison facilities in the immigration context. Yet, part of the challenge of passing legislative reform on either the federal or state level is the strong foothold that private detention companies already have in the lobbying sphere. It is estimated that “GEO Group and CoreCivic have spent $25M[illion] on lobbying over the past three decades” to increase the number of people incarcerated within their facilities.¹⁶⁸ They have also spent “$10 million in support of their preferred candidates.”¹⁶⁹ Both entities have partnered with coalitions like the conservative American Legislative Exchange Council (“ALEC”), well known for writing and promoting model legislation focused on mandatory minimum sentences, three-strikes laws, and ‘truth in sentencing’ legislation,” all of which have the effect of keeping more individuals in detention for longer periods of time.¹⁷⁰ These companies have also joined to form The Day 1 Alliance, “to rebut a growing backlash from Democratic presidential candidates and other industry critics.”¹⁷¹ The Center for American Progress reported that “[i]n memos to their shareholders, both companies [—GEO Group and CoreCivic—] acknowledge that policies with the potential to reduce the U.S. detainee population constitute potential risk factors to their business model.”¹⁷² This lobbying saturation is mirrored on the state level.¹⁷³ Thus, while legislative reform would provide an important vehicle for reform, the extensive lobbying apparatus of the immigration detention industrial complex advocates against the interests of those in their care and custody, much like the private prison industry.¹⁷⁴

B. Business Community

The private sector can also play a role in curtailing for-profit detention. First, as with many successful reform initiatives, a strong corporate consciousness can help increase public awareness and have a strong positive impact, even in the absence of formal government regulation. Second, consumer activism and responsiveness can help propel businesses to engage in better corporate conduct by demanding transparency and action through their spending and investments. Both of these are uniquely important. Because of the specific corporate and funding structure of most private facilities, for-profit detention companies are dependent on private-sector financing. Accordingly, divestment from these institutions can help reinforce or supplement litigation efforts to combat forced labor practices.

It is estimated that “3,100 companies have a financial stake in mass incarceration, from private healthcare providers and food service opera-tors to well-known names like Amazon and General Electric.”¹⁷⁵ However, limiting the financial resources of these for-profit detention companies is an important tool in curtailing their unchecked power. There is an important role for private businesses to play that may be informed by litigation, legislative work, and community engagement on this issue, and that may, in turn, influence these efforts. As GEO Group has acknowledged, “losing the backing of its banking partners ‘could have a material adverse effect on our business, financial condition, and results of operations’ if other investors decide to ditch the industry as well.”¹⁷⁶

Financial divestment from these for-profit detention centers must be part of the strategy to impact GEO and CoreCivic’s corporate structure. Both GEO and CoreCivic are established as Real Estate Investment Trusts (“REITs”) exempt from corporate income taxes.¹⁷⁷ This business organization permitted GEO Group “to save an estimated $44 million in 2017 alone.”¹⁷⁸ However, because “REITs are required by law to pass large portions of their incomes back to investors, limiting the amount of cash they have on hand[,]… [the companies] must rely on short-term loans and lines of credit, making Wall Street financing for private prison firms a crucial chokepoint of activists.”¹⁷⁹

Banks including JPMorgan Chase, Wells Fargo, Bank of America, BNP Paribas, SunTrust, Barclays, Fifth Third Bank, and PNC have publicly committed to ending ties with the private prison and immigrant detention industry, which impacts “an estimated $2.4 [billion] in credit lines and term loans to industry giants GEO Group and CoreCivic.”¹⁸⁰ Despite the leadership from some industry leaders, several banks—for example, Regions, Citizens, Pinnacle Bank, First Tennessee, and Synovus— continue to support the industry.¹⁸¹ However, it is not just the banking industry that can exercise this influence. For instance, the California Public Employees Retirement System (“CalPERS”), the state’s largest pension fund, divested $13.7 million from GEO Group and CoreCivic in October 2019 after “public employees took a stand and made their voices heard after learning that their retirement savings were propping up the very companies that have played a critical role in the migrant abuse crisis, as well as mass incarceration, and the school-to-prison pipeline.”¹⁸²

This is a message that investors, advocacy organizations, and other partners have been able to successfully champion,¹⁸³ with “over 100 grass-roots groups… pressur[ing]… banks with petitions, protests and sitins, building on years of organizing by prison divestment activists.”¹⁸⁴ If the current trend continues, “CoreCivic and GEO Group stand to lose 72 percent—about $1.9 billion—of their private financing as major banks commit to divesting from the private prison industry under pressure from activists.”¹⁸⁵ Direct divestment is only the first step, as these companies “are heavily invested in ‘alternatives’ to incarceration like ankle monitors and facial recognition technology that can extend the system of control and incarceration beyond the walls of a jail or detention center.”¹⁸⁶

C. Public Education & Support

As a prerequisite to achieving changes in fiscal or immigration policy, it is necessary to inform and influence public opinion on this issue. Public opinion translates to community pressure, to build power within the electorate and influence key actors, whether they be legislators, businesses, or other partners. As discussed above, many public interest organizations, including coalitions of advocacy groups, such as Families Belong Together, provide resources and help organize community-based campaigns to create this shift.¹⁸⁷

Recognizing recent changes in electoral power and public opinion is a helpful first step. For instance, acknowledging that “[t]he number of immigrants eligible to vote has risen 93 percent—from 12 million in 2000 to 23.2 million in 2020,” represents a dramatic increase in ballot access.¹⁸⁸ This means that in the next election, one in ten eligible American voters are immigrants, which is a record high.¹⁸⁹ This power is concentrated—in California (5.5 million), New York (2.5 million), Florida (2.5 million), Texas (1.8 million), and New Jersey (1.2 million)—as approximately six in ten of these 23 million naturalized citizens live in just five states.¹⁹⁰ But this growth has the power to make a significant difference in key swing states, like Florida, where 54 percent of the immigrant eligible voters are Latinx.¹⁹¹

In addition to a changing electorate, public opinion research indicates an increase in support for immigrant communities. One Pew study found that nearly 60 percent of Americans thought that immigrants make our country stronger, compared to 34 percent who believe that immi-grants are a burden.¹⁹² However, the ability to shift opinion may exist, even amongst those who oppose immigration, by highlighting the bloated funding to private detention facilities, lack of government transparency, and other problematic aspects of this issue. Thus, framing and messaging is important in helping to galvanize the community’s call for change.

Conclusion

This Article critically assesses the role that litigation under the Thirteenth Amendment can play in rectifying inequities that exist at the intersection of immigration, race, and labor analyzed in the immigration detention context. For immigrants in detention settings, advancing Thirteenth Amendment litigation, pursuing legislation, and shifting public opinion may provide a remedy.¹⁹³ Ultimately, the immigration detention context represents a unique opportunity to reconcile Thirteenth Amendment litigation with existing case law.

This litigation also forces us to analyze the true costs of immigration detention and the widespread lack of transparency and accountability that allows for the perpetuation of inhumane conditions that dehumanize and enslave vulnerable individuals in coercive settings. These are people in the custody of our government. If we as a society are to confine people, we must ensure it at least is in full compliance with the Constitution. Detention should not be a subsidized venture or lucrative business opportunity, especially not when it is at the expense of those whose forced labor is used to pad profit margins and fund lobbying efforts to maintain the subjugation of their captive, low-cost workforce.

Trafficking Victims Protection Act litigation provides the mechanism and framework for achieving the Thirteenth Amendment’s promise that “[n]either slavery nor involuntary servitude… shall exist within the United States.”¹⁹⁴ It also provides a broad, unambiguous basis upon which to promulgate legislation. The TVPA, passed by Congress in an effort to eliminate “all badges and incidents of slavery,” can be used to secure the basic rights and dignity of those incarcerated within our immigration system. Section 1589’s text is as unambiguous as its purpose: to end all involuntary labor obtained “by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person.”¹⁹⁵ This litigation is not only an end unto itself, but can also help propel legislation, civic activism, business consciousness, and concrete change.

Our laws do not permit a shroud of secrecy and financial exploitation to shield the abuses of the immigration detention system. Thirteenth Amendment litigation is the necessary first step in dismantling that structure. If the detention system was forced to bear its own costs, it would crumble under its own weight. In the wake of both expansion and privatization of immigration detention, the Thirteenth Amendment provides the tools to prevent the ongoing use of forced labor in these facilities, giving full force to the Amendment’s promise to abolish “all badges and incidents of slavery,” including current manifestations within the immigration detention system.