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October 03, 2023 Notes

Our Brothers’ Keepers: Reforming Intergovernmental Service Agreements in Immigration Detention

Amanda Sin

Abstract

In implementing its immigration enforcement regime, the federal government has favored the use of three-party contracts, known as Intergovernmental Service Agreements (IGSAs), wherein the federal government contracts with a state or local government for the provision of detention space and services. The state or local government then subcontracts with a private entity, which provides the necessary space and services.

This Note discusses the government’s current immigration detention regime within the context of federal procurement regulations. Specifically, it analyzes the problems arising out of United States Immigration and Customs Enforcement’s (ICE) preferential use of IGSAs, as opposed to directly contracting with public and private entities, in procuring detention facilities and services. No governmental entity has taken affirmative and effective ownership of overseeing private companies that participate in IGSAs. Those firms then provide subpar detention facilities and services, thus running afoul of underlying principles governing the U.S. immigration law regime.

This Note asserts that the use of IGSAs in acquiring detention facilities and services is an irredeemable ill in the United States’ immigration enforcement regime. Consequently, it recommends that Congress enact legislation to cure these deficiencies by explicitly (1) prohibiting the use of IGSAs in acquiring detention bedspace and services; (2) articulating a stated preference for the use of direct contracts to meet ICE’s detention needs; and (3) permitting ICE to meet exigent and compelling detention needs through limited use of interagency contracts (“riders”) with the United States Marshals Service. Only then will ICE be forced to recalibrate its efforts and affirmatively prioritize detainees’ health and safety over administrative flexibility and ease.

I. Introduction

On September 22, 2014, private corrections corporation CoreCivic approached the City of Eloy, Arizona.1 Eloy had previously agreed to provide the United States Immigration and Customs Enforcement (ICE) with an immigration detention facility and services associated with running the facility through a 2006 Intergovernmental Service Agreement (IGSA).2 Under this contract, Eloy served as ICE’s contractor to house up to 1500 adult detainees at the Eloy Detention Center.3 But Eloy, via the IGSA, turned over the day-to-day performance to its subcontractor CoreCivic, which proudly touts itself as being “the nation’s largest owner of partnership correctional, detention, and residential reentry facilities.”4 The arrangement was simple: Eloy would provide the land the facility sits upon, while CoreCivic would construct and operate the facility.

CoreCivic’s 2014 overture to Eloy and the resulting Core Civic-Eloy joint proposal represented a sharp deviation from prior IGSAs, as ICE’s own staff attorneys regarded the scheme as legally inadvisable.5 In the end, Eloy and CoreCivic jointly sought a modification to the 2006 IGSA, which would permit CoreCivic to operate the South Texas Family Residential Center, a detention facility situated in Dilley, Texas.6 Eloy would have no involvement in overseeing the contract work’s performance.7 ICE, despite its attorneys’ misgivings, accepted the proposed contract modification and executed the South Texas Modification.8 Eloy was now the prime contractor responsible for CoreCivic’s operation of a facility that stood 900 miles away.9 In short, Eloy raked in approximately $438,000 annually in fees from both the federal government and CoreCivic for its role as a “middleman.”10

The story of Eloy, CoreCivic, and the federal government’s complex tripartite relationship is not unique.11 In implementing pre- and post-adjudication detention, the federal government has turned to three primary means to secure necessary immigration detention facilities and services: directly contracting with private entities, entering into “rider” agreements with the U.S. Marshals Service to use Marshals-acquired bedspace, and entering into IGSAs, wherein ICE contracts with a local or state government that in turn, enters into a subcontract with a private entity.12 The federal government has consistently favored the use of IGSAs to meet its immigration detention needs.13 According to a 2021 report by the Government Accountability Office (GAO), IGSA facilities held approximately fifty-five percent of the average daily detainee population.14 Contract detention facilities, which are acquired via direct contract between ICE and a private entity, and Marshals’ “rider” facilities respectively held sixteen percent and seventeen percent of the average daily detainee population.15 ICE’s reliance on IGSAs is purposive. ICE officials have cited IGSAs’ inherent flexibility in meeting ICE’s time-sensitive and uncertain needs as to why the agency has and will likely continue to favor the use of IGSAs.16

However, ICE’s preference for IGSAs has birthed unsettling practices.17 IGSA cities such as Eloy have, for their role as “middleman,” received per-bed fees from corrections corporations that actually operate the detention centers.18 The City of Dilley, which later became the “middleman” following re-negotiation of the South Texas Modification, received $0.50 per day, per detainee, from CoreCivic.19 Dilley’s then-Mayor Mary Ann Obregon, in her 2017 bid for re-election, boasted that CoreCivic’s relationship with the city provided over 600 jobs and a “payroll” exceeding $32.4 million to Eloy’s economy.20

Additionally, for all the benefits reaped by ICE and these local governments, neither government entity has meaningfully involved itself in supervising CoreCivic and other detention providers’ work, thus allowing these private corporations to engage in substandard performance.21 For example, former detainee Yazmin Coyoy has alleged that Eloy’s insufficient supervision of the South Texas Family Residential Center caused the Center’s failure to meet “the most basic standard of care,” thus resulting in the death of Coyoy’s toddler daughter from a “catastrophic intrathoracic hemorrhage.”22 Similarly, former detainee Andrea Yaruro has alleged that guards at the Irwin County Detention Center in Ocilla, Georgia, attacked, assaulted, and neglected her.23 She argued that her mistreatment by LaSalle Southeast LLC’s personnel has left her with “displaced and degraded” spinal discs and post-traumatic stress disorder.24 Both women have made allegations consistent with findings published by the Department of Homeland Security’s Office of Inspector General (OIG).25 OIG reports have laid bare the unsanitary and unsafe conditions inherent in IGSA facilities, as well as the incompetence and bad acts on the part of detention personnel.26 One report substantiated detainees’ claims that facility staff used chemical agents against detainees who protested the lack of appropriate personal protective equipment amidst the COVID-19pandemic.27 Multiple reports concluded that facilities did not provide timely or adequate medical and dental care to its detainees, giving credence to Ms. Coyoy’s and Ms. Yaruro’s individual claims.28 In short, detention providers’ substandard performance may cause detainee deaths and serious injuries.29

This Note discusses the government’s current immigration detention regime within the context of federal procurement regulations.30 Specifically, it analyzes the problems arising out of ICE’s preferential use of IGSAs, as opposed to direct contracts, in procuring detention facilities and services.31 It finds that IGSA facilities are uniquely susceptible to mismanagement by both the federal government and the involved state or local government entity for the following reasons. First, unlike direct contractors, private entities that provide and operate detention centers via IGSAs are not governed by contract administration rules stipulated in the Federal Acquisition Regulation (FAR).32 In fact, ICE has consistently argued that because IGSAs are not governed by the FAR, ICE is justified in overseeing IGSA facilities in a subpar manner, thus allowing the private entities that operate IGSA facilities to engage in inadequate performance with little to no repercussion.33

Second, and as was previously mentioned, ICE has exercised insufficient oversight over state and local entities’ actions. As the prime contractors in this three-party relationship, state and local entities must answer to the government for defects in contract performance. However, the government is either unwilling or unable to hold state and local government authorities accountable for private firms’ misdeeds as subcontractors.

Third, as prime contractors, state and local governments lack the capacity or willingness to meaningfully supervise private firms’ performance and account for the use of federal funds received from ICE. The subcontracting private entities are allowed to operate relatively unchecked. No governmental entity has taken affirmative and effective ownership of overseeing IGSA-holding private companies, thereby enabling those firms to provide subpar detention facilities and services and run afoul of underlying principles governing the U.S. immigration law regime. Due to the inherent pressures that encourage government non-involvement, IGSAs have become an irredeemable contract vehicle that should be abolished.

Part I begins with an overview of historic and contemporary federal regulations and practices concerning immigration detention. Part II discusses the three contract vehicles and their associated detention facility types: contract detention facilities (CDFs), IGSA facilities, and ICE-U.S. Marshals interagency agreement facilities (“rider” facilities). After establishing this background, Part III analyzes why mismanagement is endemic in IGSA facilities. Part III also recommends that Congress enact legislation to cure these deficiencies by explicitly (1) prohibiting the use of IGSAs in acquiring detention bedspace and services; (2) articulating a stated preference for the use of direct contracts to meet ICE’s detention needs; and (3) permitting ICE to meet exigent and compelling detention needs through limited use of United States Marshals Service “riders,” such as during upward surges in the detainee population.34

II. Background

This section provides background information contextualizing the questions surrounding IGSA use. It provides a brief overview of significant historic developments in U.S. immigration law and policy, which have resulted in the federal government’s reliance on pre- and post-adjudicatory detention as a necessary enforcement tool. First, it discusses historic and contemporary trends and attitudes towards immigration detention. Second, it explores the relationships between the federal government and contractor entities, as well as the nature of such partnerships in modern immigration enforcement.

A. Immigration Enforcement Prior to 1996

Prior to 1996, American immigration policies framed detention as a necessary tool while the federal government determined whether a non-citizen would be allowed entry onto U.S. soil.35 While the government recognized that individuals possessed an “inherent and inalienable right” to change their homes and allegiances, it also insisted on its “absolute and unqualified” right to admit, expel, or impose entry-related conditions upon noncitizens during conditions of war or peace.36

The Supreme Court has repeatedly affirmed the federal government’s right to accept and reject individuals seeking entry onto U.S. soil.37 In Wong Wing v. United States, the Court held that, in pursuing sound public policy, the federal government may protect “by summary methods, the country from the advent of noncitizens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land and unlawfully remain therein.”38 Therefore, the government faced the task of adjudicating individuals’ entries into the United States.39 Those who are excluded from the United States are subjected to deportation after the conclusion of civil proceedings.40

Congress passed the 1882 Act to Regulate Immigration to provide the Executive Branch with rules on how to distinguish “desirable” from “undesirable” immigrants.41 Nevertheless, the federal government encountered significant logistical difficulties in engaging in this type of sorting, given the volume of daily arrivals from the New York harbor.42 In response to this problem, in 1893, Congress explicitly mandated the use of detention in administering immigration laws, instructing that “it shall be the duty of every inspector of arriving noncitizen immigrants to detain for a special inquiry.”43 One year later, Congress recognized the need to hold noncitizens prior to their “conveyance… to the frontier or seaboard for deportation.”44 As a result, it passed a law appropriating funds to cover expenses associated with pre- and post-adjudication imprisonment and authorizing the actual act of deportation.45

The Supreme Court has reaffirmed the use of pre- and post-adjudication detention as necessary to implement well-run immigration policies, stating that “[p]roceedings to exclude or expel would be in vain if those accused could not be held in custody pending the inquiry into their true character and while arrangements were being made for deportation.”46 However, any actions taken by the government that deviate from temporary detention, civil adjudication, and non-punitive deportation are likely unlawful.47 After all, the government may not impose punishments that would deprive the liberty or property of even those noncitizens who have unlawfully entered and remained in the United States.48 All in all, it is evident that, while the government’s use of immigration detention in enforcing immigration laws does not inherently violate the Constitution, the government must carefully implement detention so that it is strictly non-punitive and necessarily humane.

B. Immigration Enforcement Post-1996

The U.S. immigration detention regime is currently governed by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which sought to amend the 1952 Immigration and Naturalization Act.49 The 1996 Act sets out the following aspects of immigration detention: it authorizes the federal government’s detention of noncitizens pending formal removal proceedings and possibly releasing some on bond or on their own recognizance; it requires the detention of noncitizens excludable because of specified criminal activity or terrorism-related concerns; it requires the detention of noncitizens who appear subject to removal; and it allows the detention of noncitizens for a ninety-day period post-adjudication, as well as detention beyond that period as necessary.50 In practice, noncitizens deemed “not clearly and beyond a doubt” admissible at the border are, by default, subject to mandatory detention.51

After the 9/11 terrorist attacks and subsequent passage of the 2002 Homeland Security Act, the newly created Department of Homeland Security (DHS) absorbed the Immigration and Naturalization Service and U.S. Customs Service.52 Upon assuming the legacy agencies’ duties, DHS created three new agencies, including ICE.53 Along with its other responsibilities, ICE enforces immigration law by managing all aspects of the enforcement process, such as identifying, arresting, and detaining noncitizens who “present a danger to our national security, are a threat to public safety, or who otherwise undermine the integrity of our immigration system.”54

Immigration detention remains a significant fixture in the U.S. immigration regime. According to its Fiscal Year 2020 Enforcement and Removals Operations Report, ICE managed over 3.26 million removal cases and held, on average, 33,724 noncitizens in custody daily.55 During the summer of 2019, owing in part to historic surges in migration at the Southwest border, ICE reported that its detention centers’ average daily population exceeded 55,000.56 It also reported that safety measures implemented in response to the COVID-19 global pandemic led to a temporary decrease in the number of noncitizens held in custody.57 As a result, ICE predicted that migration may surpass pre-pandemic levels once pandemic conditions begin to resolve within the U.S.58 This projected increase was consistent with the DHS Fiscal Year 2022 Budget in Brief, in which the Executive Branch stated that it will likely spend approximately $8.4 billion to fund ICE operations.59

ICE’s predictions about the post-pandemic era of immigration enforcement appear to be accurate.60 In fiscal year 2022, ICE recorded 2.4 million encounters with migrants at the Southwest border, which surpassed the historic high of 1.7 million recorded in fiscal year 2021.61 Moreover, both the Trump and Biden administrations had relied on Title 42 of the U.S. Code to limit the number of arriving non-citizens on the grounds of preventing further spread of the COVID-19 virus.62 On April 11, 2023, President Joe Biden signed a bipartisan resolution ending the national emergency as well as public health emergency declarations, thus ending the pandemic-related restrictions on immigration and removal.63 The White House has since announced the deployment of an additional 1500 active duty servicemembers to assist DHS personnel in processing the forecasted onslaught of migrant claims.64 In sum, the United States is bracing for a record wave of arrivals in the summer of 2023.65

Furthermore, the Pew Research Center estimated that between a fifth and a quarter of the American population is comprised of unauthorized noncitizens.66 Any member of that subset could potentially be subject to pre- and post-adjudication detention if apprehended by law enforcement or immigration enforcement officials.67 The federal government is thus tasked with providing an adequate number of beds to meet the growing number of detainees and ensuring that its enforcement regime is humane and non-punitive, as instructed by the Supreme Court’s Wong Wing holding.68

III. How Things Work: An Overview of Contract Vehicles Used to Acquire Detention Facilities and Services

In implementing its immigration enforcement regime, the federal government has engaged in three different types of partnerships, as reflected by the three distinct contract vehicles associated with each relationship.69 First, the government has directly partnered with private entities, thereby awarding detention facilities and services cost reimbursement contracts through negotiated procurement.70 This relationship results in the operation of contract detention facilities (CDFs).71 Second, the government has engaged in interagency acquisition, wherein ICE partners with the U.S. Marshals Service to use Marshals-acquired bedspaces in local prisons, jails, or other detention facilities.72 This relationship results in facilities and services acquired by “riders.”73 Finally, the government has contracted with a state or local government that, in turn, establishes subcontracts with private entities for the day-to-day operation of the detention centers.74 This tripartite relationship results in facilities and services acquired by IGSAs, the complex relationships that are the core focus of this Note.75

In recent years, the shares of detainees held in CDFs and “rider”-acquired facilities have been dwarfed by the share of detainees held in IGSA facilities.76 In fiscal year 2019, ten CDFs and sixty-two “rider” facilities respectively held sixteen percent and seventeen percent of the average daily detainee population.77 In sharp contrast, 105 active IGSA facilities held fifty-five percent of the average daily detainee population.78 A far lesser proportion of detainees are held in ICE-owned and -operated service processing centers.79 Owing to differences in acquisition methods used, the standards for oversight across CDFs, IGSA facilities, and “rider” facilities differ.80

A. Contract Detention Facilities Agreements

To understand IGSAs, one must first examine CDF agreements because CDFs were the first vehicle that the government used to fulfill its immigration enforcement needs.81 While the government had previously relied on federally owned and operated service processing centers to meet its detention needs, it began to establish CDFs with private entities to lower overall costs.82 This also helped to meet the needs of an ever-increasing detainee population.83 From 1979 to 1997, CDF entities steadily increased their foothold in providing detention-related necessities to the government, such as by housing thousands of Cuban and Haitian migrants and non-citizens suspected or convicted of crimes involving drugs, firearms, or moral turpitude.84 According to a longitudinal study of private imprisonment firms, federal contracts awarded between 1979 and 1988 for the provision and operation of immigration detention centers allowed for a select group of corporations to achieve dominance in both domestic and international markets.85 The early reliance on private contractors was chiefly justified because contractors were able to open and operate facilities at “breakneck speed.”86 For example, Wackenhut, Inc., which had won a contract to provide and operate a facility in Denver, Colorado, built and opened its 150-bed facility within 90 days of signing its contract.87 Today, proponents of privatized detention cite similar reasons presented by their pre-1990 counterparts: contractor-operated facilities provide high-quality services that effectively meet the government’s needs, while presenting significant cost savings to the federal government.88

ICE awards CDF contracts through negotiated procurement.89 CDF contracts, which are generally Indefinite Delivery/Indefinite Quantity (ID/IQ) contracts for detention facilities and services, fall under the purview of FAR parts 15 and 16.90 Accordingly, ICE’s administration of CDF agreements feature the following FAR-compliant measures: (1) ICE must include Quality Assurance Surveillance Plans, outlining the standards that the Contracting Officer’s Representative (COR) will use to oversee the contractor’s performance; (2) ICE must document contract performance discrepancies or deviations from the agreed-upon terms of performance; and (3) when applicable, ICE must levy appropriate penalties upon the offending contractor.91

B. Intergovernmental Service Agreements (IGSAs)

Facilities acquired through IGSAs are established through the federal government’s partnerships with local and state governments.92 According to the Government Accountability Office, when a state, county, or city contracts with ICE to provide detention facilities and services, the former entity may subcontract its day-to-day operational responsibilities to a private detention firm.93 In this two-step delegation, ICE pays the state or local government a per-diem rate to house ICE detainees.94 Then, the state or local government pays the private detention company the amount that the former had received from ICE.95 The private company may further compensate the state or local government for awarding it the subcontract, such as by paying a flat fee to the state or local government and a fixed price per detainee.96 Unlike direct contracts attained through negotiated procurement, IGSAs are not a contract vehicle expressly covered by the FAR.97 The FAR’s provisions on subcontracting are, however, generally applicable as to what duties are borne by the government in approving the prime contractor’s engagement of a subcontractor.98

The recent prevalence of IGSAs can be traced back to two sources of converging underlying pressures. First, local and state governments’ appetites to make and enforce immigration laws have consistently increased.99 When it enacted the 1996 Immigration and Nationality Act, Congress allowed federal immigration authorities to enter into agreements with state and local governments to enforce federal immigration laws by identifying, arresting, and detaining suspected unauthorized noncitizens.100 After the 9/11 terrorist attacks, states have engaged with immigration at increased levels.101 According to the National Conference on State Legislatures, state attention to immigration has increased from 300 bill introductions and 45 enactments in 2005 to over 1,400 bill introductions and 208 enactments in 2010.102 Graeme Boushey and Adam Luedtke, experts in public policy, suggest that state politicians may gain political benefits from “intruding on federal jurisdiction over immigration control” if their constituents perceive that the federal government is not properly enforcing immigration laws, thus incentivizing their interest in immigration policymaking.103 Given immigration enforcement’s salience as a politicized question, state and local politicians’ appetites for making and implementing immigration policies are unlikely to wane in the future.104

Second, state and local governments have operated on and furthered the belief that building and operating prisons will result in inevitable and sustained economic boosts.105 State and local politicians’ strong policy preferences in prison building has consistently prevailed and will likely persist in the coming years.106 Since the mid-1990s, economically failing or stagnant rural communities have embraced the idea that prisons are a “panacea” for poor economic outcomes.107 According to an executive from Correction Corporation of America, communities are competing with one another for prison siting: “We don’t have to sell it to a community. The community is knocking on our door . . . [and] they want it in the front yard.”108 In particular, constituents have argued that building and operating a prison in their geographic “backyard” would create a short-term shock during the construction phase and long-term benefits for local workers who are engaged in the day-to-day work of running a prison.109

While these considerations may exist regarding CDFs’ presence in the community, they are much more applicable to discussions concerning IGSA facilities, as IGSAs are established between the federal government and a state or local entity.110 In other words, because state or local governments are parties to an IGSA, they have a say in its contents and are accordingly influenced by policy opinions of their constituents.111 For example, in a city planning commission hearing in Adelanto, California, a local woman who had been employed by the GEO Group, a private corporation that operated the nearby IGSA facility, argued that GEO had “brought to the city unlimited possibilities.”112 She then advocated for GEO’s continued presence as an employer and investor in Adelanto.113 In her 2017 re-election campaign, Dilley’s then-Mayor Mary Ann Obregon claimed that CoreCivic had provided more than “$7 million in insurance and benefits” to Dilley’s citizens and approximately $250,000 to Dilley’s coffers in property taxes.114

Most significantly, because IGSAs involve incentive fees paid by the contractor, state and local governments have an apparent profit motive to enter into an IGSA and subcontract the ensuing construction and operations to a private corporation.115 Because these fees are substantial sources of income for state and local governments, IGSA facilities are especially attractive to those sub-federal entities that want to make and enforce immigration policy in their own areas of responsibility.116 The adverse impact of these incentive fees is further explored in this Note’s Part III. Specifically, these fees likely motivate state and local governments to establish more IGSAs and continually ignore how private corporations run detention facilities.

C. U.S. Marshals Service “Riders”

Riders” are a means by which ICE acquires additional bedspace and detention services through interagency acquisition.117 Here, ICE joins, or “rides,” an existing U.S. Marshals Service contract, which had been formed to procure detention for Marshals’ detainees.118 While the number of Marshals facilities in use is only second to the number of IGSA facilities, “rider” facilities hold a low proportion of the overall daily detainee population.119 In this type of interaction, ICE is the “requesting agency” and the Marshals Service is the “servicing agency.”120

According to GAO findings, ICE does not engage in any negotiation with the Marshals’ contractors.121 Rather, by “riding” the Marshals’ contracts, it acquires bedspace and services under the terms, rates, and conditions attached to the original Marshals’ agreement.122 Finally, the ability to use Marshals-procured beds is “contingent on availability.”123 ICE officials have reported that if the Marshals Service needs the space, ICE will have to “move its detainees elsewhere on short notice.”124

Marshals Service facilities are a proverbial can of worms unto themselves. According to a 2012 report published by the Sentencing Project, the Marshals frequently acquire facilities through their own IGSAs with state or local governments, which, in turn, contract with private entities.125 At the time that the Sentencing Project report was published, less than seven percent of actively-used Marshals facilities are owned and operated by private corporations, with the rest owned and operated only by a state or local government.126 As such, “riders” are an inherently complex interaction. Upon ICE’s “riding,” the final outcome is a four-party relationship: the Marshals Service; the state or local government entity; the private sub-contractor; and finally, ICE itself. At least one ICE official has admitted that ICE does not have full access to the original contract document and relevant materials.127 Without access to crucial records, such as the original contract document, ICE cannot readily reference the terms governing contract performance.128 Therefore, ICE appears unable to properly oversee its “riders.” Moreover, as the original party to the pre-existing contract, the Marshals Service have assumed responsibility for vetting contractors and overseeing contract performance.129 The contract’s waters are thus further muddied by the fact that the Marshals have had their own difficulties in achieving adequately thorough oversight of their detention IGSAs.130

IV. IGSAs: An Irredeemable Ill

IGSAs, as three-party relationships, are woefully susceptible to mismanagement by the federal government and the state or local government. They also lead to poor performance of contract work by the private corporation.131 By expressly refusing to apply the FAR in overseeing private entities and failing to provide direction or meaningful supervision of state and local governments’ actions, ICE has allowed private subcontractors to engage in consistently deficient performance.132 In short, ICE’s use of IGSAs in acquiring detention facilities and services is an irredeemable ill in the U.S. immigration enforcement regime.

Part IV pinpoints the underlying reasons as to why proper oversight of IGSAs is unattainable. It demonstrates that ICE has routinely adopted a “hands off” approach towards directing local and state governments and private corporations’ performance of contract work.133 It then demonstrates that local and state governments have comfortably settled into their role as middlemen who facilitate payment exchanges and receive incentive fees from private corporations.134 The federal government and state and local governments have avoided taking affirmative and effective ownership of their oversight responsibilities, thus permitting private entities to engage in shoddy work with impunity.135 Finally, Part IV recommends that Congress enact legislation to cure these deficiencies by explicitly (1) prohibiting the use of IGSAs in acquiring detention bedspace and services; (2) articulating a stated preference for the use of direct contracts to meet ICE’s detention needs; and (3) permitting ICE to meet exigent and compelling detention needs through limited use of U.S. Marshals Service “riders.”

A. The Federal Government’s Relationship with Private Entities

The federal government’s inadequate oversight can be understood from two angles: the government’s interactions with the subcontractor private entities and the government’s interactions with the prime contractor state and local entities. Under IGSAs, private entities that provide and operate detention centers are subcontractors and are not governed by post-contract award rules stipulated in the FAR.136 Therefore, in administering the resulting IGSA, ICE has declined to take actions that would otherwise be statutorily required if ICE were to oversee typical FAR-governed contracts.137 ICE’s actions have created a scattered and inconsistent approach towards IGSA facility oversight. As a result, ICE has permitted private entities to provide subpar detention services.138

ICE has not conducted quality assurance surveillance in IGSA facilities with the same rigor as CDFs. This is due to the agency’s position that IGSAs are not subject to FAR-based contract administration rules.139 ICE’s failure to engage in adequate contract oversight has manifested in three forms. First, ICE has not consistently included or enforced Quality Assurance Surveillance Plans (QASPs) in detention contracts and agreements, which, ultimately, has led to confusion and a suboptimal approach in issuing Discrepancy Reports.140 The 2019 DHS OIG report on ICE’s failure to use all available quality assurance tools highlights the difference between the degree of surveillance associated with CDFs versus IGSA facilities: all CDFs were governed by agency-approved QASPs, whereas only ten out of eighty-seven IGSA facilities were governed by QASPs.141 As mentioned in Part III, a QASP empowers CORs and contracting officials to track incidents of noncompliant performance and issue official Discrepancy Reports.142 Those reports are an integral oversight tool as they enable ICE to “track historic trends at particular facilities,” provide guidelines on consistent sanctioning measures, proactively monitor historically problematic facilities, and analyze trends to derive better detention management practices.143 Moreover, the reports are a crucial component of ICE’s administrative record, should the agency instruct non-complying private entities to adopt corrective measures or impose financial penalties upon them.144

Even in instances where CORs have issued Discrepancy Reports, which record violations of contract terms and conditions, ICE has not imposed financial penalties for serious documented deficiencies.145 DHS OIG reported that, while ICE officials found approximately 14,003 deficiencies across 106 reviewed contract facilities between October 2015 and June 2018, ICE only imposed financial penalties twice.146 While the pool of facilities reviewed includes CDFs and IGSA facilities alike, this statistic is meaningful because it is demonstrative of ICE’s consistent failure to confront private entities about the latter’s defective performance.147 In addition, ICE has not shown significant improvement in its administration of IGSA facilities since DHS OIG identified deficiencies and recommended corrective actions to ICE.148 GAO’s investigation indicates that ICE did not evenhandedly respond to Discrepancy Reports issued in 2019.149 From a pool of fourteen reports reviewed by GAO, eleven reports were actively tracked by the agency’s internal tracking system.150 One report could not be located.151 While six reports resulted in financial deductions or withholdings totaling approximately $3.9 million, ICE returned $2.6 million to the “detention center [operators] after the discrepancies were resolved.”152 In other words, ICE did not impose permanent, irreversible sanctions upon noncompliant private actors.

Second, ICE has frequently issued waivers to IGSA facilities experiencing deficiencies through an uneven, arbitrary, and informal process, thereby enabling private entities to continue their suboptimal performance with minimal to no repercussions.153 Between September 2016 and July 2018, ICE approved ninety-six percent of waiver requests submitted by facility operating entities, including those operating CDFs and IGSA facilities.154 ICE’s high waiver-approval rate is particularly problematic regarding overseeing IGSA facilities. Although IGSA facilities must comply with the Performance-Based National Detention Standards to assure detainees’ safety, security, and rights, ICE’s recklessness in waiver approval is demonstrative of their lack of willingness to properly monitor IGSA facilities.155

Even more egregious is the fact that ICE officials, other than Contracting Officers, have been empowered to approve IGSA waivers.156 Consequently, those individuals have been permitted to modify contract language by removing certain standards from oversight, despite those standards being a part of the original, mutually agreed-upon contract.157 In following with ICE’s assertion that only CDFs are governed by FAR provisions, ICE has deviated from the FAR by delegating IGSA waiver-approval authority to officials within the Custody Management division.158 The FAR requires that only Contracting Officers, “acting within the scope of their authority,” may execute contract modifications.159 Additionally, Custody Management has not shared information regarding waiver approval with Acquisitions Management.160 As such, ICE contracting officials have been wholly removed from the waiver approval process and are unable to determine whether the waiver contradicts existing contract terms or violates controlling federal laws or regulations.161

All in all, ICE’s failure to properly oversee facilities can be explained by its conscious refusal to apply FAR-recommended or mandated quality assurance and contract administration measures.162 Unless ICE is willing or able to establish and implement rules specific to IGSA administration and oversight, ICE will continue, per the current status quo, to enable private entities’ bad acts through its spotty and uneven supervisory actions. Moreover, ICE’s consistent failure to sanction private actors for defective performance is especially alarming. This endemic area of inaction reflects ICE’s unwillingness to undertake corrective action, despite having been taken to task by DHS OIG.163 It also strongly suggests that ICE cannot be trusted to improve upon its contract oversight abilities on its own and without binding rules. Thus, if ICE’s failings are to be rectified, Congress must intervene by passing legislation prohibiting ICE’s use of IGSAs.

B. The Federal Government’s Interactions with State and Local Governments

ICE’s “hands off” attitude towards state and local governments (i.e. the prime contractor) has also likely contributed to inadequate oversight of IGSA facilities. According to the controlling federal law provisions, the government may “make payments from funds appropriated” to state or local governments, pursuant to a pre-negotiated agreement between the government and that sub-federal entity.164 The result is a three-party relationship, wherein the sub-federal entity simply functions as a middleman that facilitates exchanges in payments.165 Accordingly, while the local or state government is the prime contractor in an IGSA, in reality it works as a “pass-through” mechanism that does not supervise the day-to-day performance of the detention contract.166 The most glaring example is that of the aforementioned City of Eloy’s relationship with ICE and CoreCivic.167 ICE modified an existing IGSA between itself and Eloy, Arizona, which resulted in the creation of the South Texas Family Residential Center in Dilley, Texas.168 While other examples do not involve cities nominally responsible for detention centers located across state lines, Eloy is far from the only city that is an IGSA middleman.169 In an Enforcement and Removal Office list published in December 2021, approximately eighty-eight towns and cities host at least one IGSA facility.170 In other words, approximately eighty-eight middlemen do little except collect incentive fees for their assistance in putting federal government funds into private corporations’ hands.

The federal government’s inability or unwillingness to hold state and local governments accountable is evident and has likely contributed to this inefficient and ineffective tri-partite relationship. Across multiple DHS OIG reports, one GAO report, and one House Committee on Homeland Security report published from 2018 to 2021, the federal government has not made any recommendations regarding improving oversight of state and local entities as IGSA prime contractors.171 For example, in its March 2021 report concerning its investigation of the La Palma Correctional Center, DHS OIG concluded with eight recommendations, which were all directed to the Phoenix Enforcement and Removal Office lead official.172 La Palma is operated under an IGSA between ICE, CoreCivic, and Eloy, Arizona.173 Likewise, in its 2019 recap report on unannounced inspections of ICE facilities, DHS OIG addressed its recommendation to the Acting Director of ICE.174 While the overarching theme of federalism is outside this Note’s scope, it is still significant that ICE, having made a compact with a state or local entity, is not holding that prime contractor responsible for deficient performance despite having a contractual right to do so.

ICE is unlikely to change its “hands off” attitude towards state and local governments and its similar attitude towards private corporations, on its own and without outside pressures.175 Congress must enact statutory guidelines that eliminate these unproductive relationships between the federal government and IGSA-holding state and local governments.

C. State and Local Governments’ Inaction

Amidst the lack of pressure or direction from the federal government, state and local entities have demonstrated that they are either unwilling to or incapable of supervising private firms’ performance and regulating federal funds received from ICE. Accordingly, IGSA entities are further allowed to operate relatively unchecked.

Beyond a lack of ability due to limited resources and manpower, state and local governments are likely unwilling to investigate and forcefully confront private entities due to profit-related interests. As mentioned in prior sections, private detention corporations have paid handsome incentive fees to state and local governments for the latter’s participation as the “middleman.”176 The California State auditor reported that, in return for awarding private entities their ICE subcontracts, cities and counties received significant fees.177 For example, the City of Adelanto has received approximately $1 million annually from GEO since fiscal year 2016.178 The total sum included an administrative fee of $50,000, a fee of $1.00 per contracted bed per day, irrespective of whether a detainee occupied said bed, and a fee of $339,000 for additional local police support to the detention operator.179 The City of Holtville received $0.75 per detainee from contractor IVGC, which amounted to an excess of $157,000 annually.180 Additionally, city and state residents have reaped benefits, from charitable donations to jobs offered by those private contractors.181

It is also disturbing that the exact particulars concerning these incentive fees are not publicly available.182 The incentive fees earned by Californian cities Adelanto, McFarland, and Holtville were only revealed when the California State auditor published its findings regarding the state’s IGSA facilities.183 Texan city Dilley made its contracts with ICE and CoreCivic available to the Associated Press only after the news outlet had made an open records request in response to the Dilley-ICE-CoreCivic agreement regarding the South Texas Family Residential Center.184

Moreover, state and local governments have had little to no interaction with the detention facilities and the subcontractor private entities.185 As mentioned previously, the author was unable to find any contract language through which ICE expressly details the state or local government’s oversight responsibilities as the prime contractor.186 Thus, it is unclear as to what degree of involvement and what type of supervisory obligations the state or city governments have assumed.187 The Adelanto city manager stated that the only involvement Adelanto has with ICE or GEO is in signing monthly invoices from GEO and in transferring federal funds received from ICE to GEO.188 Adelanto has never regularly inspected its detention facilities.189

Furthermore, both Adelanto and Holtville have failed to keep accurate records containing basic information on the detention centers, such as demographic information of detainees housed, detainees’ duration of detention, and information about detainee deaths that occurred inside the detention facilities.190 The Holtville city manager stated that the private entity verbally informed him of deficiencies and serious complaints and admitted that he did not verify this information by reading reports issued by ICE.191 Therefore, while the California state auditor recommended that the state and local government assume a more proactive role in administering these IGSAs to correct these deficiencies,192 it is uncertain whether this recommendation is realistic. After all, absent motivation, whether created via conditioning the receipt of incentive fees upon fulfilling contract administration responsibilities or arousing the fear of costs associated with tort litigation, it is unlikely that state or local governments are equipped or willing to better oversee these complex tripartite relationships.193

D. Recommendations

This Note recommends that Congress enact legislation containing (1) an explicit prohibition on the use of IGSAs in acquiring immigration detention bedspace and services; (2) a stated preference for the use of direct contracts to meet ICE’s detention needs; and (3) a “safety valve” clause that permits ICE to meet exigent and compelling detention needs through limited use of U.S. Marshals Service “riders.”

As noted previously, congressional action is warranted because ICE is unlikely to take any necessary corrective action on its own. State or local governments are also unlikely to voluntarily become more involved as prime contractors. Irrespective of whether state or local governments are unwilling or impotent, they appear content to continue as passive “middlemen” while lining their coffers with incentive fees from private corporations. Therefore, Congress must intervene by enacting legislation that would prohibit the use of IGSAs. If left to their own devices, ICE and IGSA-holding state and local governments would allow the current status quo of mismanagement to continue without any end in sight.

This new statute must also contain a stated preference for the use of contract detention facilities. This is because CDFs are governed by FAR provisions that enable the federal government to engage in quality assurance surveillance and to penalize contractors that engage in deficient contract work. Therefore, CDFs are the better contract vehicle in ensuring that the federal government engages in adequate and proper contract oversight.

Finally, the new statute should authorize the use of Marshals Service “rider” facilities only in exigent and compelling circumstances, such as during unforeseeable upward surges in the detainee population. ICE officials’ preference for IGSAs largely stems from an underlying preference for a more flexible contracting approach in meeting the agency’s needs.194 However, this desire for flexibility should rarely, if ever, outweigh the need to keep detainees well and safe, as human lives are at stake if private entities render subpar performance.

In 2022, the Wong Wing holding still controls; in enforcing immigration laws, the federal government must only use non-punitive and humane detention.195 To ensure that its detention system is non-punitive and humane, the federal government must affirmatively prioritize its compliance with the Wong Wing principles over ICE’s desire for flexibility.196 The Wong Wing principles represent a “need,” whereas ICE’s desire for flexibility is merely a “want.”197 Prohibiting ICE’s use of IGSAs while allowing ICE to continue its use of Marshals Service “riders” in a limited manner would enable ICE to successfully confront unusual circumstances. Simultaneously, the statute would improve how ICE contracts for detention bedspace and services by forcing ICE to act in accordance with its “needs” versus “wants.”

V. Conclusion

IGSAs have created a situation wherein the U.S. government at all levels has failed to affirmatively and effectively take ownership of overseeing private entities providing detention services. The federal government prizes IGSAs because of the contract vehicle’s inherent flexibility; because an IGSA is not a FAR-governed direct contract, the government does not need to comply with the FAR and other authorities governing federal procurement in forming and administering it.198 However, in actively choosing to prioritize forming and administering “flexible” contracts, the federal government has made a significant trade-off.199 ICE has consistently enabled contractors to engage in substandard performance, thus illustrating its position that detainees’ physical security and overall wellbeing must take a backseat to administrative ease.200 In 2018, the DHS OIG recommended that ICE establish and communicate specific written procedures for IGSA usage and how such usage must comply with Federal contracting guidelines.201 No public sources indicate that ICE actually took the corrective action recommended.202 Likewise, state and local governments are likely to continue seeking IGSAs and allowing private corporations to operate unfettered, given these governments and their constituents’ persistent profit motives and policy preferences. In sum, none of the involved government entities is willing or able to police private corporations’ contract performance and as a result, their refusal to engage in competent contract administration and adopt necessary corrective measures has made IGSAs unsalvageable.

Because ICE’s use of IGSAs is an irredeemable ill in the United States’ immigration enforcement regime, Congress must prohibit ICE’s further use of this contract vehicle. Congress must explicitly (1) prohibit the use of IGSAs in acquiring detention bedspace and services; (2) articulate a stated preference for the use of direct contracts to meet ICE’s detention needs; and (3) permit ICE to meet exigent and compelling detention needs through limited use of U.S. Marshals Service “riders.” Only then will ICE be forced to recalibrate its efforts and affirmatively prioritize detainees’ health and safety over administrative flexibility and ease.

Endnotes

1. Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-18-53, Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services 4 (2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-02/OIG-18-53-Feb18.pdf [hereinafter OIG ICE Guidelines Report].

2. Id. at 3.

3. Id.

4. About Us, CoreCivic, https://www.corecivic.com/about [https://perma.cc/CZH3-RAXY] (last visited Mar. 31, 2022).

5. OIG ICE Guidelines Report, supra note 1, at 3–4. (“ICE’s Commercial and Administrative Law Division within the agency’s Office of the Principal Legal Advisor issued a memorandum warning the Director and Head of Contracting that the South Texas modification was not legally advisable.”). The Division also determined that the modification was outside of the original IGSA’s scope. Id.

6. Id. at 3–5.

7. Id. at 4.

8. Id.

9. Id. The aforementioned memorandum specifically highlighted the 900-mile distance between Eloy and Dilley and concluded that the distance would preclude Eloy from exercising meaningful operational control over CoreCivic’s work in Dilley.

10. Id., OIG Highlights i. Note that it is unclear whether the $438,000 is inclusive of incentive fees paid by CoreCivic for Eloy’s act of subcontracting the contract work and of potential fees paid by the federal government. A more detailed breakdown of payments received by “middlemen” sub-federal government entities is included later in this Note.

11. U.S. Gov’t Accountability Office, GAO-21-149, Immigration Detention: Actions Needed to Improve Planning, Documentation, and Oversight of Detention Facility Contracts 1 (2021), https://www.gao.gov/products/gao-21-149 [hereinafter GAO Oversight Report]. In fiscal year 2019, there were 133 IGSA facilities across the country.

12. Id. at 7.

13. Id. at 1.

14. Id. at 11.

15. Id. at 11–12. The remaining twelve percent of the average daily detainee population is held in either family residential centers, facilities owned and operated by state or local authorities that hold families with minor children (four percent) and service processing centers, which are facilities owned by and primarily operated by ICE itself (eight percent). While GAO reported that family residential centers may also operate under IGSAs, this Note will not discuss family residential centers, given the far greater share of adult detainees that have arrived and are held without minor children than those eligible for detention in family residential centers.

16. Id. at 13–14.

17. These practices are discussed in further depth throughout this Note. Specifically, I am referring to the perverse financial incentives that undergird the interactions between the “middlemen” private entities and the state or local governments that are the actual prime contractors. For example, private entities typically pay a fee to state or local governments to serve as a subcontractor. See Elaine M. Howle, Cal. State Auditor, Rep. No. 2018-117, City and County Contracts with U.S. Immigration and Customs Enforcement: Local Governments Must Improve Oversight to Address Health and Safety Concerns and Cost Overruns 16 (2019).

18. Id.

19. City of Dilley, Agreement Between the City of Dilley, Texas and CoreCivic, Inc. 2 (2018). For electronic access, see https://perma.cc/MY2U-64CC.

20. Mary Ann Obregon, To All the Citizens of Dilley, Dilley Aguas, http://www.dilleyaguas.com/wp-content/uploads/2017/04/obregon-ad.png [https://perma.cc/5GHV-P2M4] (last visited Mar. 31, 2022). Obregon’s comments were published in a campaign advertisement that originally ran in local newspaper Frio-Nueces Current, via its print edition on March 16, 2017. A digitized copy of Obregon’s advertisement is preserved in Jose Asuncion’s blog Dilley Aguas.

21. I refer to the allegations that ICE and the state and local governments have turned a blind eye to bad acts committed by private entities and their employees. See, e.g., Yaruro v. United States, Case No. 7:22-cv-39, 2023 WL 2614593, at *1–2 (M.D. Ga. Mar. 23, 2023). The Yaruro plaintiff effectively imputed wrongdoing by an IGSA participant to ICE, as she alleged that both ICE and LaSalle Southeast LLC are responsible for her injuries.

22. Coyoy v. CoreCivic, Inc., Case No. SA-19-CA-00916, 2019 WL 9654876 at *1–2 (W.D. Tex. Oct. 9, 2019). Ms. Coyoy alleged that unsanitary conditions at the Core Civic-operated facility caused her twenty-one-month-old daughter Mariee to become ill from a viral lung infection and ultimately succumb to acute respiratory failure. Ms. Coyoy also alleged that the detention center’s clinic turned her daughter away multiple times and prescribed ineffective medications for a child of Mariee’s age. See also Arnold & Porter Files Claim on Behalf of Mother Whose Baby Girl Died After Medical Mistreatment in ICE Custody, Arnold & Porter Kaye Scholer, LLP (Aug. 28, 2018), https://www.arnoldporter.com/en/perspectives/news/2018/08/ap-files-claim-on-behalf-of-mother [https://perma.cc/L49V-ZM9V].

23. Yaruro, 2023 WL 2614593, at *1–2. Ms. Yaruro alleged that guards at the detention center threw her into a table and then confined her in a “punishment cell.” Ms. Yaruro had participated in a video call with other detainees, in which they communicated to another detainee’s family that the facility did not observe COVID-19 safety protocols. Ms. Yaruro claimed that the resulting attack and confinement were in retaliation for her part in the call since a recording of the call had been disseminated to the press. She also alleged that after her release from the “punishment cell,” she was not given medical treatment for her back injuries, despite guards witnessing her screaming in pain.

24. See id at *2–3. Ms. Yaruro’s claim was ultimately dismissed for failure to state a claim under the Federal Tort Claims Act against the United States and failure to state a claim under the Rehabilitation Act, under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

25. See generally Off. of Inspector Gen., Dep’t of Homeland Sec., Pub No. OIG-18-86, Management Alert—Issues Requiring Action at the Adelanto ICE Processing Center in Adelanto, California (2018); Off. of Inspector Gen., Dep’t of Homeland Sec., Pub. No. OIG-19-47, Concerns about ICE Detainee Treatment and Care at Four Detention Facilities (2019); Off. of Inspector Gen., Dep’t of Homeland Sec., Pub. No. OIG-20-45, Capping Report: Observations of Unannounced Inspections of ICE Facilities in 2019 (2020); Off. of Inspector Gen., Dep’t of Homeland Sec., Pub. No. OIG-21-03, ICE Needs to Address Concerns about Detainee Care and Treatment at the Howard County Detention Center (2020); Off. of Inspector Gen., Dep’t of Homeland Sec., Pub. No. OIG-21-30, Violations of Detention Standards amid COVID-19 Outbreak at La Palma Correctional Center in Eloy, AZ (2021); Off. of Inspector Gen., Dep’t of Homeland Sec., Pub. no. OIG-21-32, Violations of ICE Detention Standards at Pulaski County Jail (2021) [hereinafter DHS OIG Mismanagement Reports].

26. Off. of Inspector Gen., Dep’t of Homeland Sec., Pub. No. OIG-21-30, Violations of Detention Standards amid COVID-19 Outbreak at La Palma Correctional Center in Eloy, AZ 4-6 (2021) [hereinafter DHS OIG La Palma Report].

27. Id.

28. See id. at 9–11; see also Off. of Inspector Gen., Dep’t of Homeland Sec., Pub. No. OIG-21-32, Violations of ICE Detention Standards at Pulaski County Jail 8 (2021).

29. See Yaruro, 2023 WL 2614593, at *1–2; Coyoy, 2019 WL 9654876, at *1–2.

30. The author acknowledges that there are other potential remedies available in dealing with IGSA facility mismanagement. Most recently, the United States District Court for the Southern District of Indiana hinted at the possibility that ICE’s improper certification of a facility’s compliance with detention standards may constitute final agency action that is reviewable under the Administrative Procedure Act. This Note invites future authors to consider this issue. See Xirum v. U.S. Immigration and Customs Enforcement, Case No. 1:22-cv-00801, 2023 WL 2683112, at *11 (S.D. Ind. Mar. 29, 2023).

31. Hereinafter, “facilities” refers to the housing or areas of confinement in which immigrants must physically remain during the pre- and post-adjudication phases of their proceedings. “Services” refers to provision of “necessary clothing, medical care, necessary guard hire, and the… care and security” of detained immigrants. The Immigration and Naturalization Act authorizes the Secretary of Homeland Security to provide those facilities and services, as well as empowers the Secretary to enter into cooperative agreements with “any State, territory, or political subdivision thereof” to achieve such provision. See 8 U.S.C. § 1103(a)(11).

32. The author acknowledges that IGSA facilities’ endemic mismanagement is also closely related with contract formation-stage actions. For example, both ICE and GAO have interpreted the statutory language as exempting IGSA awards from complying with FAR-mandated competition rules, such as the presumption that past performance will be evaluated in awarding a contract. This Note invites future authors to consider this subject. See generally Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub No. OIG-19-18, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards (2019) [hereinafter DHS OIG Contracting Tools Report].

33. See, e.g., OIG ICE Guidelines Report, supra note 1, at 6

34. The author acknowledges that there exists extensive research regarding ending immigration detention entirely and pivoting towards other mechanisms of surveillance. However, this Note will not address what alternative methods to adopt in detention’s stead. For discussion on electronic monitoring as an alternative to physical detention, see generally Amanda DeLaPierre, Note, Contracting in the Era of Mandatory Immigration Detention, 49 Pub. Cont. L.J. 351 (2020).

35. See Nishimura Ekiu v. United States, 142 U.S. 651, 661 (1892); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 539–40 (1950); Brandon Hallett Thomas, Separation of Powers and Thuraissigiam: The Entry Fiction as Judicial Aggrandizement, 136 Harv. L. Rev. 226, 232–35 (2023). Thomas explains that since Nishimura Ekiu v. United States, the government has applied the doctrine of “entry fiction” to arriving non-citizens. The doctrine allowed for arriving non-citizens to disembark and be housed on U.S. soil while the government decided whether or not to officially admit them. Nishimura Eiku was cited in the Supreme Court’s holding in Shaughnessy v. United States ex rel. Mezei, when the Court determined that the U.S. Attorney General could lawfully detain immigrants on Ellis Island, New York.

36. See Fong Yue Ting v. United States, 149 U.S. 689, 711–30 (1893) (holding that federal law requiring the deportation of Chinese laborers who did not hold certificates of residence did not violate the Constitution’s provisions concerning due process, the right to jury trial, prohibition on reasonable search and seizure, and prohibition on cruel and unusual punishment).

37. See e.g. Nishimura Ekiu, 142 U.S. at 660–61 (holding that the 1882 Immigration Act properly allowed the executive branch to examine immigrants, and if those immigrants showed any signs of being “lunatics,” “convicts,” “idiots, or liable to become public charges, then they would not be permitted to come onto U.S. soil).

38. See Wong Wing v. United States, 163 U.S. 228, 237 (1896).

39. Id.

40. See Fong Yue Ting, 149 U.S. at 730 (holding that the order of deportation was not the outcome of criminal proceedings, as immigration adjudication is not “a trial and sentence for a crime or offense.” As such, the question of whether the government violated Constitutional protections relating to criminal procedures, such as the right to due process, is moot. Hence, civil immigration proceedings wherein an noncitizen is detained, arraigned, and later deported, are not inherently unconstitutional.).

41. 1882 Immigration Act, ch. 376, § 2, 22 Stat. 214, 214–15. For example, the Act charged the Secretary of the Treasury to administer an inspections program, where ships carrying passengers into any port would be searched for “any convict, lunatic, idiot” or any individual at risk of becoming a “public charge.” The Act required inspectors to refuse admission to those who met the aforementioned qualifications.

42. Report of the Select Committee on Immigration and Naturalization, H.R. Rep. No. 3472, at 1–3 (1891). The Congressional Select Committee on Immigration and Naturalization found that absent an “immigrant depot,” authorities examining prospective entrants conducted wholly inadequate inspections. The Committee found that, on occasion, these inspections averaged thirty seconds per immigrant.

43. 1893 Immigration Act, ch. 206, 27 Stat. 569 (repealed 1952), cited in Daniel Wilsher, Immigration Detention: Law, History, Politics 15 (2011). Accessible via Image 595 of U.S. Statutes at Large, Volume 27 (1892–1893), 52nd Congress, Libr. of Cong.

See also 1952 Immigration & Nationality Act, ch. 477, § 403(a), 66 Stat. 163, 279 (repealing the 1893 Immigration Act).

44. Wong Wing, 163 U.S. at 231–32; Act of August 18, 1894, ch. 301, 28 Stat. 372, 390

45. Wong Wing, 163 U.S. at 231

46. See id. at 235.

47. ICE Director John Morton emphasized that ICE detention serves no purpose beyond “secur[ing an immigrant’s] presence for immigration proceedings” and their potential later removal. As such, ICE detention must be conducted in “the most humane manner possible with a focus on providing sound conditions and care.” See U.S. Immigr. & Customs Enf’t,Performance-Based National Detention Standards 2011, at i (2011).

48. Wong Wing, 163 U.S. at 236–38. The Court in Wong Wing held that the government had acted improperly when it, post-adjudication, ordered that unlawful noncitizens be subjected to imprisonment at hard labor. Citing Ex parte Wilson, the Court affirmed that “imprisonment at hard labor, compulsory and unpaid, is… ‘involuntary servitude for crime.’” In short, that “infamous punishment” cannot be lawfully imposed, unless the government institutes necessary criminal proceedings. See generally Ex parte Wilson, 114 U.S. 417 (1885).

49. Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, Div. C, 110 Stat. 546, 546–724 (codified in scattered sections of 8 U.S.C., 18 U.S.C., and 28 U.S.C.).

50. 8 U.S.C. § 1226(a)–(c); 8 U.S.C. § 1225(b); 8 U.S.C. § 1231(a)(2), (6); see also Argiz v. U.S. Immigration, 704 F.2d 384 (7th Cir. 1983) (holding none of the Sixth Amendment, Speedy Trial Act, or Interstate Agreement on Detainers guarantees quick removal proceedings); see also Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42, 49 (2010). Kalhan argues that immigration detention is excessive in part because of its length. Kalhan also reported that “approximately five percent of detainees . . . are held for more than four months and approximately 2,100 are held for more than a year.”

51. Wilsher, supra note 43, at 69. Wilsher cites 8 U.S.C. § 1225(b)(2)(A) and notes the modern default towards detention versus releasing on bail, the latter of which had been practiced prior to migrant crises of the 1980s.

52. Homeland Security Act, 6 U.S.C. § 291.

53. Honoring the History of ICE, U.S. Immigr. & Customs Enf’t, https://www.ice.gov/features/history [https://perma.cc/5H2K-FWDR] (last visited Mar. 31, 2022).

54. About ICE, U.S. Immigr. & Customs Enf’t, https://www.ice.gov/about-ice [https://perma.cc/QU4G-YZRY] (last visited Mar. 31, 2022).

55. U.S. Immigr. & Customs Enf’t, Fiscal Year 2020 Enforcement and Removal Operations Report 4, 7–9 (2020).

56. Id. at 9.

57. Id. The Enforcement and Removal Operations Report stated that ICE had drawn down its detained population to seventy-five percent or less, to comply with Center for Disease Control and working group guidance on COVID-19 best practices.

58. Id.

59. U.S. Dep’t of Homeland Sec., Fiscal Year 2022 Budget in Brief 32 (2021).

60. See generally Off. of Inspector Gen., Dep’t of Homeland Sec., Pub. No. OIG-23-24, Intensifying Conditions at the Southwest Border Are Negatively Impacting CBP and ICE Employees’ Health and Morale (2023).

61. Id. at 2.

62. Eileen Sullivan, What the End of a Pandemic-Era Health Order Will Mean for the Southern Border, N.Y. Times (May 8, 2023), https://www.nytimes.com/2023/05/08/us/politics/title-42-immigration-border.html [https://perma.cc/2V7D-K3EK].

63. See id; see also Biden Ends COVID National Emergency After Congress Acts, NPR (Apr. 11, 2023), https://www.npr.org/2023/04/11/1169191865/biden-ends-covid-national-emergency [https://perma.cc/N7EM-UW6F].

64. Alexander Ward et al., ‘Unacceptable’: Top Dem Rips Biden Plan to Send 1,500 More Troops to Southern Border, Politico (May 2, 2023), https://www.npr.org/2023/04/11/1169191865/biden-ends-covid-national-emergency [https://perma.cc/9TLZ-7VE9]; The U.S. servicemembers will not carry out law enforcement work but will be responsible for support duties such as data entry, warehouse support, etc. See Tayvion Darden, U.S. Northern Command: Camp Lejeune Marines Among Those Deployed to U.S. Mexico Border, WITN-TV (May 6, 2023, 18:36 PM), https://www.witn.com/2023/05/06/camp-lejeune-marines-be-among-those-deployed-us-mexico-border [https://perma.cc/934G-G9GE]. WITN is a local NBC affiliate in Jacksonville, North Carolina.

65. Secretary Mayorkas claimed that the United States is about to face the “greatest migration in our hemisphere since World War II.” Meet the PressApril 30, 2023, NBC News (Apr. 30, 2023, 12:30 PM), https://www.witn.com/2023/05/06/camp-lejeune-marines-be-among-those-deployed-us-mexico-border [https://perma.cc/MV7J-Z99B].

66. Abby Budiman, Key Findings About U.S. Immigrants, Pew Rsch. Ctr. (Aug. 20, 2020), https://www.pewresearch.org/short-reads/2020/08/20/key-findings-about-u-s-immigrants [https://perma.cc/H2LK-8H3M].

67. See U.S. Immigration & Enforcement, ICE Annual Report: Fiscal Year 2022 11 (2022). ICE asserted that it may detain individuals “as necessary” under its civil detention program, so to secure their presence for immigration proceedings and removal.

68. At the time of writing, Wong Wing remains good law. Therefore, the Supreme Court’s command that the Executive Branch engage in strictly non-punitive and humane detention still controls how the Executive Branch may enforce federal immigration laws.

69. See GAO Oversight Report, supra note 11, at 7.

70. See U.S. Dep’t of Homeland Sec., 70CDCR19R00000005 (Aug. 15, 2019, 12:33 PM), https://sam.gov/opp/4d9344759c1f42a5b1c25e5de5a1e892/view [https://perma.cc/PB6M-DNXT]. Page 1 consists of ICE’s copy of Standard Form 33, in which the Contracting Officer has indicated that the solicitation is a request for proposals. In short, the Contracting Officer has indicated that the government will award the contract after negotiations. The solicitation’s evaluation factors, which are contained in the packet’s Section M and begin on page 175, include non-price factors. This further confirms that the government means to acquire detention bedspace and services through negotiated procurement, versus “low price shootout” bidding. See also U.S. Dep’t of Homeland Sec., 70CDCR19R00000008, (Aug. 10, 2020, 10:16 AM), https://sam.gov/opp/4b03409e338c47edac85dba5880c8dcc/view [https://perma.cc/EPC9-Q6F9].

71. GAO Oversight Report, supra note 11, at 7.

72. Id.

73. Id.

74. Id.

75. Id.

76. Id. at 11.

77. Id. at 12.

78. Id. at 11.

79. Id. GAO noted in fiscal year 2019, five service processing centers held five percent of the average daily population of detained immigrants. Use of service processing centers has been strongly disfavored by ICE officials. For example, officials have argued that creating more service processing centers is not a viable means of meeting the agency’s needs for increased detention bedspace and services, since ICE does not have construction authority. As such, this Note will not discuss them at length. See GAO Oversight Report, supra note 11, at 13.

80. As I explore later in this Note, CDFs are subject to contract administration rules set forth in the FAR because they are direct contracts between the government and a private entity. Because IGSAs and “riders” involve subcontractors, the resulting relationships are not direct contracts. See e.g. Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. OIG-21-57, ICE’s Oversight of the Capgemini Contract Needs Improvement 3-8 (2021) [hereinafter DHS OIG Capgemeni Contract Report].

81. See Douglas C. McDonald, Public Imprisonment by Private Means: The Re-Emergence of Private Prisons and Jails in the United States, the United Kingdom, and Australia, 34 Brit. J. Criminology 29, 30 (1994). McDonald notes that Immigration and Nationalization Service (INS) first contracted with private firms for immigration detention services in 1979. This makes CDFs the first type of contracted detention center used by the federal government.

82. See Homeland Sec. Advisory Council, U.S. Dep’t of Homeland Sec., Report of the Subcommittee on Privatized Immigration Detention Facilities 9 (2016). The Council alleged that a wholly federally owned and operated immigration detention system is more expensive than one that uses contracted facilities and services. It stated that the former would cost the U.S. $184.35 per person, per day, whereas the latter would cost the U.S. $144.23 per person, per day.

83. Zachary Bauer & Jocelyn M. Johnston, Who Does It Better? Comparing Immigration Detention Facility Performance in an Intergovernmental and Intersectoral Context, 80 Pub. Admin. Rev. 244, 246 (2019).

84. See Danielle C. Jeffreris, Constitutionally Unaccountable: Privatized Immigration Detention, 95 Ind. L. J. 145, 152–56 (2020).

85. See McDonald, supra note 81, at 30 (noting that INS-awarded contracts gave several “significant players their early starts,” such as Tennessee-based Corrections Corporation of America (CCA), and, in turn, CCA, fueled by its successes in providing immigration detention centers, would eventually expand its operations into Great Britain and Australia by 1992).

86. Id. at 30.

87. Id. While it is not clear how much more time prison construction projects would require if the private partnership were unavailable, Wackenhut’s work speed is still significant. In 2010, the U.S. Department of Justice National Institute of Corrections projected that prison facility development typically requires 50 months from needs assessment to occupancy of the completed prison. See James R. Robertson, Nat’l Inst. of Corr., U.S. Dep’t of Just., Jail Planning and Expansion: Local Officials and their Roles 11 (2010).

88. See McDonald, supra note 81, at 36–38 (reporting that government officials cited lowered costs and speedy expansion of capacity as core reasons to embrace contractor-run detention facilities); see also generally Memorandum from Curtis Bramble & Vernon Jones on Why Contracting for Performance in Prison and Detention Management is Worth a Closer Look (Sept. 3, 2019) (on file with Management & Training Corp. and is accessible at https://perma.cc/3PRH-44CV). Then-Utah State Senator Bramble and U.S. Congressman Jones of Georgia jointly argued that increased reliance on private prisons and immigration detention centers would lead to “improved outcomes, accountability, and cost savings.”

89. See generally Solicitation No. 70CDCR19R00000005, supra note 70; Solicitation No. 70CDCR19R00000008, supra note 70.

90. Indefinite Delivery/Indefinite Quantity contracts are used when a federal agency is not certain of the exact times and/or quantities of the good or service for which it wishes to contract. ID/IQs are typically awarded after a two-step competition process. First, prospective contractors engage in “full and open competition” for inclusion into a group of vendors. This step of competition involves the typical FAR Part 15 request for proposal process, wherein hopeful contractors submit proposals as part of negotiated procurement. Then, the final task or delivery order is awarded to a vendor or subset of vendors that was selected in that aforementioned group. The ID/IQ first-step competition can be thought of as analogous to a heat in a competition. Only those who advance past the heats can compete for the prize. See generally Judge Advocate Gen. Legal Ctr. & Sch., U.S. Army, 2021 Contract Attorneys Deskbook 6-12 to 6-14 (2021); see also FAR 16.501-2; FAR 16.504.

91. See FAR 46.401 (mandating the performance of government quality assurance measures and the formation of surveillance plans); see also GAO Oversight Report, supra note 11, at 10. It is also noteworthy that CDFs have not always been managed in an entirely adequate way. For example, in August 2021, DHS Office of Inspector General found that ICE has engaged in affirmative mismanagement, such as by selecting the wrong type of direct contract and overpaying the contractor in labor costs. See generally DHS OIG Capgemeni Contract Report, supra note 80, at 3–8.

92. See GAO Oversight Report, supra note 11, at 16.

93. See City of Dilley, supra note 19, at 4 (“CoreCivic shall perform all of the obligations set forth in the IGSA for which the City is obligated to perform as the Service Provider . . . .”); see also GAO Oversight Report, supra note 11, at 16.

94. GAO Oversight Report, supra note 11, at 16.

95. Id.; see also City of Dilley, supra note 19, at 4.

96. Howle, supra note 17, at 16.

97. ICE has consistently reiterated its position that IGSAs are not governed by the FAR. DHS OIG has not made any determination to the contrary, nor has any federal court. See, e.g., OIG ICE Guidelines Report, supra note 1, at 6; see also Transcript of Jerald Neveleff Deposition at 44, National Immigrant Justice Center v. U.S. Dep’t of Homeland Sec. & U.S. Immigr. and Customs Enf’t (N.D. Ill. 2015). Deponent Jeff Neveleff was ICE’s Deputy Assistant Director for Detention Management and, under oath, testified that IGSAs are “non-FAR-based.”

98. See FAR 44.202-1(a) (stating that typically, the government reserves the right to require that contractors seek the government’s consent prior to establishing subcontracts, especially if the contractor does not have a pre-approved purchasing system); see also Neveleff Deposition, supra note 97, at 44. Mr. Neveleff’s remarks are conducive to the inferences that general FAR principles may apply to IGSAs and that IGSAs may contain some FAR-derived clauses.

99. Graeme Boushey & Adam Luetdke, Immigrants Across the U.S. Federal Laboratory: Explaining State-Level Innovation in Immigration Policy, 11 State Pol. & Pol’y Q. 390, 391 (2011). Boushey and Luetdke noted “an explosion” of state-level immigration policies from 2001 to 2011.

100. See 8 U.S.C. § 1103(a)(11)(a). See generally U.S. Gov’t Accountability Off., GAO-21-186, Immigration Enforcement: ICE Can Further Enhance Its Planning and Oversight of State and Local Agreements 6–9 (2021). By participating in “287(g) programs,” state and local governments are able to participate in federal immigration enforcement by entering into memoranda of agreement. As a result, state and local-level law enforcement agencies are empowered to identify, arrest, and detain potentially removeable noncitizens.

101. For example, the first 287(g) agreement was signed in the wake of the 9/11 attacks, when Florida state officials became concerned about the amount of terrorism-related investigations in Florida, which involved foreign nationals. See Examining 287(G): The Role of State and Local Law Enforcement in Immigration Law: Hearing Before the H. Comm. On Homeland Sec., 111th Cong. 10 (2009) (Statement of William F. Riley, Acting Director of ICE’s Office of State and Local Coordination).

102. Boushey & Luetdke, supra note 99, at 393.

103. Id. at 407. Boushey and Luedtke’s study also posits that constituents’ perception of the cultural threat arising from new immigrant populations likely increases state politicians’ willingness to introduce and pass laws regarding enhanced immigration control.

104. In recent years, political discourse concerning unauthorized noncitizens has dominated the United States landscape. Even beyond the Trump presidency, popular support for increased immigration controls is unlikely to disappear into the horizon. In April 2021, the Cato Institute reported that forty-five percent of Americans polled do not favor a pathway to citizenship for unauthorized noncitizens currently residing in the United States. It also reported that thirty-nine percent polled do not favor granting automatic citizenship to American-born children of undocumented parents, with fifty-eight percent of Republicans polled supporting stripping citizenship of said children. See Emily Ekins & David Kemp, Poll: 72% of Americans Say Immigrants Come to the United States for Jobs and to Improve Their Lives, Cato Inst. (Apr. 27, 2021), https://www.cato.org/blog/poll-72-americans-say-immigrants-come-us-jobs-improve-their-lives-53-say-ability-immigrate [https://perma.cc/RCH8-9WJH].

105. See Gregory Hooks et al., The Prison Industry: Carceral Expansion and Employment in U.S. Counties, 1969–1994, 85 Soc. Sci. Q. 37, 40, 54 (2004). Hooks et al. referenced findings from Timothy J. Bartik’s Who Benefits from State and Local Economic Development Policies?. Bartik argued that faster job growth in a locality creates systematic changes to the area’s labor market. In the short run, individuals who would otherwise be unemployed are able to find work, while others are able to “move up” to better jobs. Accordingly, laborers are collectively able to increase their human capital and thus, are more prepared to compete in the labor market, even as newcomers move to this locality. Hooks et al. have found Bartik’s conclusion credible. See Timothy J. Bartik, Who Benefits from State and Local Economic Development? 76 (1991).

106. Hooks et al., supra note 105, at 51–54. It is notable that Hooks et al. have found little empirical evidence to support the premise that prison-building and operation have spurred actual economic growth. Specifically, they did not find that prisons helped lower the unemployment rate, raise local families’ median incomes, or raise earnings. However, Hooks et al. noted that political leaders have continued to espouse and promote this belief, thus contributing to its salience in the sphere of state and local economic policymaking.

107. Id. at 38.

108. Id. at 38, 40. Hooks et al. also noted that this belief is country-wide, citing anecdotal examples of a town in Illinois that funded a television advertisement to persuade state legislators to locate a new prison in their locale, and of a Sunday school class in Texas that reportedly got on their knees to pray for a new prison’s establishment in their neighborhood.

109. Id. at 40.

110. See GAO Oversight Report, supra note 11, at 16.

111. See James A. Stimson et al., Dynamic Representation, 89 Am. Pol. Sci. Rev. 543, 559–60 (1995). Stimson et al. found that U.S. public policy is dynamic because that it responds to changes in public opinion. They concluded that “when the public asks for a more activist or a more conservative government, politicians oblige.” In other words, large-scale shifts in public opinion create large-scale shifts in government action. Public opinion influences public policy via a “strong and resilient link.”

112. Rebecca Plevin, How A Private Prison Giant Has Continued to Thrive in a State That Wants It Out, Desert Sun (Jan. 24, 2020, 5:51 PM), https://www.desertsun.com/in-depth/news/2020/01/24/private-prison-giant-geo-thrives-california-state-wants-out/2589589001 [https://perma.cc/LF2L-WVTD]. Interestingly, the GEO Group is the new name of Wackenhut, Inc. Wackenhut enjoyed considerable success after completing the Denver prison-building and operating contract. In 2003, Wackenhut became the GEO Group. For more information about Wackenhut’s transformation into GEO, see Geo, GEO Group History Timeline (2023), https://www.geogroup.com/history_timeline [https://perma.cc/DQH7-T996] (last accessed Mar. 30, 2022).

113. Plevin, supra note 112.

114. Obregon, supra note 20.

115. See GAO Oversight Report, supra note 11, at 17. GAO noted that ICE does not track the incentive fees that state or local IGSA holders collect from subcontractors. That amount is directly negotiated between the state or local entity and the private corporation.

116. See Howle, supra note 17, at 17. The California State Auditor estimated that since fiscal year 2016, Adelanto received approximately $1 million annually from GEO.

117. See Transcript of Jerald Neveleff Deposition, supra note 97, at 93. Note federal officials’ distinction between interagency agreements and intergovernmental service agreements. The latter, as a term of art, only refers to agreements with sub-federal government entities, while the former refers to agreements between federal-level agencies. Here, that interagency agreement would be the “rider” to which ICE and the Marshals Service are parties.

118. GAO Oversight Report, supra note 11, at 7.

119. Id. at 11–12. In fiscal year 2019, approximately sixty-two “rider” and ninety-one IGSA facilities held detainees. However, the “rider” facilities only held seventeen percent of the total average daily detainee population, whereas IGSA facilities held thirty percent of that population.

120. See generally FAR 17.5.

121. GAO Oversight Report, supra note 11, at 13–14.

122. Id.

123. Id. at 7.

124. Id. at 28.

125. Cody Mason, The Sent’g Project, Dollars and Detainees: The Growth of For-Profit Detention 11 (2012).

126. Id.

127. Transcript of Jerald Neveleff Deposition, supra note 97, at 77.

128. Id. Mr. Neveleff noted that ICE would only receive records from the Marshals Service if there have been modifications made to contract terms.

129. Seth Freed Wessler, Inside the US Marshals’ Secretive, Deadly Detention Empire, Mother Jones (Dec. 2019), https://www.motherjones.com/crime-justice/2019/10/inside-the-us-marshals-secretive-deadly-detention-empire [https://perma.cc/8YRD-PYLM]. The Marshals Service former Acting Director David Harlow testified to Congress that the Marshals Service conducts investigations to ensure contract facilities’ compliance with contract terms and Marshals Service detention standards. These findings are documented in form USM-218 and are shared with facility operators to correct performance defects.

130. In private communication with Cody Mason, the U.S. Marshals Service General Counsel K.A. Day admitted to Mason that “sometimes we don’t know who’s actually providing services.” See Mason, supra note 125, at 11, 19. While the author acknowledges the oversight problems regarding “rider” facilities, this Note will not discuss this topic and will leave it to another writer to tackle.

131. For example, DHS OIG has found that various IGSA facilities did not comply with the performance-based National Detention Standards when they used excessive force, such as chemical agents, to gain detainee compliance; strip-searched detainees without documented reasonable suspicion or supervisory approval; kept incomplete and inadequate records, including detainee grievance logs; failed to implement COVID-19 safety protocols; failed to provide emergency or timely dental services; failed to provide prompt medical services; and, failed to provide sanitary and clean living environments. See, e.g., DHS OIG La Palma Report, supra note 27, at 4–6, 9–11.

132. As previously noted, ICE has consistently asserted that IGSAs are not governed by the FAR. See e.g. DHS OIG Contracting Tools Report, supra note 32, at 11. It is also important to note that DHS OIG has neither commented on nor refuted the merits of ICE’s position.

133. The agency’s failure to meaningfully impose quality surveillance measures is later discussed at length. See id. at 7–9.

134. For example, the California State Auditor found that state and local governments did not keep adequate records or make efforts to stay informed about private actors’ performance under their subcontracts. See Howle, supra note 17, at 17.

135. As discussed later at length, no government entity has held these corporate actors directly accountable. For example, the federal government has not imposed meaningful financial penalties on noncompliant corporations. See DHS OIG Contracting Tools Report, supra note 32, at 8–9. Similarly, no publicly available records suggest that state or local governments have held corporations responsible via their “prime-sub” relationship, despite the California State Auditor suggesting that corporations’ bad acts may be imputed to state and local governments. See Howle, supra note 17, at 17.

136. See Transcript of Jerald Neveleff Deposition, supra note 97, at 44. ICE official Neveleff testified that an “IGSA is non-FAR-based. It is FAR-like.” Neveleff’s comments are indicative of ICE’s official position that rules applicable to “regular” FAR-governed negotiated procurement, such as the negotiation of Quality Assurance Surveillance Plans, are inapplicable to IGSAs

137. Id.

138. For examples of poor performance, see generally DHS OIG Mismanagement Reports, supra note 25.

139. See FAR 46.405 (mandating the government’s use of quality assurance measures when it is required in the government’s interest).

140. GAO Oversight Report, supra note 11, at 38.

141. DHS OIG Contracting Tools Report, supra note 32, at 8, app. C. A discrepancy report documents issues arising in contract performance and violations of contract terms. See also GAO Oversight Report, supra note 11, at 5 n.9.

142. DHS OIG Contracting Tools Report, supra note 32, at 7–8.

143. GAO Oversight Report, supra note 11, at 40.

144. DHS OIG Contracting Tools Report, supra note 32, at 8. A facility is required to respond to Discrepancy Reports by a specific date and must indicate that the deficiencies listed have either been corrected or are being corrected by ongoing remedial activity. With respect to the overarching importance of a developed administrative record, see generally Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971) (holding that Executive Branch agencies’ decision-making must not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law).

145. DHS OIG Contracting Tools Report, supra note 32, at 8–9. According to DHS OIG, the financial penalties imposed totaled approximately $3.9 million, which constituted 0.13% of the total payment to contractors during the same timeframe. ICE did not withhold final contract payment in any instance.

146. Id.

147. Id.

148. GAO Oversight Report, supra note 11, at 41.

149. Id.

150. Id.

151. Id. at 42.

152. Id.

153. DHS OIG Contracting Tools Report, supra note 32, at 10.

154. Id.

155. Id. According to officials interviewed by DHS OIG, ICE does not maintain any “[official] policies, procedures, guidance documents, or instructions to explain how to review waiver requests.” Moreover, waivers appear to allow long-term noncompliance with detention standards, since the vast majority of waivers did not contain expiration dates, and ICE does not typically reassess or review waivers after they are approved.

156. Id. at 11.

157. Id.

158. FAR 43.102 (a).

159. Id. In the same subpart, the FAR explicitly provides that “other Government personnel shall not – (1) Execute contract modifications; (2) Act in such a manner as to cause the contractor to believe that they have authority to bind the Government; or (3) Direct or encourage the contractor to perform work that should be the subject of a contract modification.”

160. DHS OIG Contracting Tools Report, supra note 32, at 12.

161. Id.

162. See id.; see GAO Oversight Report, supra note 11.

163. As mentioned previously, reports from neither DHS OIG nor GAO indicate that ICE has taken substantive corrective action. See generally DHS OIG Mismanagement Reports, supra note 25. The author notes that all of these DHS OIG reports were generated after the 2019 report that criticized ICE for its failure to use contract administration tools to hold private corporations accountable for poor contract performance.

164. 8 U.S.C. § 1103(a)(11)(A), (B).

165. See generally OIG ICE Guidelines Report, supra note 1, at 3–4. DHS OIG used the term “middleman” to describe the role of the City of Eloy, Arizona.

166. See GAO Oversight Report, supra note 11, at 17. GAO interviewed an unnamed sheriff who worked for a local government that was an IGSA holder. The sheriff and officials from the private facility operator said that the private operator handled the facility’s day-to-day and was responsible for knowing and ensuring the facility’s compliance with ICE rules and policies.

167. See generally OIG ICE Guidelines Report, supra note 1, at 2–4.

168. Id. at 2.

169. See generally U.S. Immigr. and Customs Enf’t, U.S. Dep’t of Homeland Sec., Dedicated and Nondedicated Facility List (Dec. 6, 2021).

170. Id.

171. See generally Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. OIG-18-53, Immigration and Customs Enforcement Did Not Follow Federal Procurement Guidelines When Contracting for Detention Services (2018); Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. OIG-18-67, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (2018); Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. OIG-19-18, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards (2019); Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. OIG-19-47, Concerns About ICE Detainee Treatment and Care at Four Detention Facilities (2019); Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. OIG-20-45, Capping Report: Observations of Unannounced Inspections of ICE Facilities in 2019 (2020); Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. OIG-21-30, Violations of Detention Standards amid COVID-19 Outbreak at La Palma Correctional Center in Eloy, AZ (2021); Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., OIG-Pub. No. 21-32, Violations of ICE Detention Standards at Pulaski County Jail (2021); Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. OIG-21-61, Violation of ICE Detention Standards at Otay Mesa Detention Center (2021); see also U.S. Gov’t Accountability Off., GAO- 21-149, IMMIGRATION DETENTION: Actions Needed to Improve Planning, Documentation, and Oversight of Detention Facility Contracts (2021); U.S. Gov’t Accountability Off., GAO- 21-186, IMMIGRATION ENFORCEMENT: ICE Can Further Enhance Its Planning and Oversight of State and Local Agreements (2021); Majority Staff of H.R. Comm. on Homeland Sec., 116th Cong., ICE Detention Facilities: Failing to Meet Basic Standards of Care (2021) (electronically accessible at https://perma.cc/NC69-JNUR).

172. DHS OIG La Palma Report, supra note 27, at 17.

173. Id. at 2.

174. See generally Off. of Inspector Gen., U.S. Dep’t of Homeland Sec., Pub. No. 20-45, Capping Report: Observations of Unannounced Inspections of ICE Facilities in 2019, at 15 (2020).

175. See, supra note 171. All the reports contain similar findings of wrongdoing by private corporations that handle the day-to-day operations in IGSA facilities. The pattern of similar bad acts is indicative of ICE’s unwillingness to take meaningful remedial actions and make systemic changes.

176. Howle, supra note 17, at 16.

177. Id.

178. Id.

179. Id.

180. Id.

181. See generally Rebecca Plevin & Martin Estacio, Adelanto Council Deadlocks on ICE Expansion; City Attorney Determines Expansion Can Continue, Desert Sun (Sept. 9, 2020, 1:08 PM), https://www.desertsun.com/story/news/2020/09/09/adelanto-council-vote-geo-bid-expand-ice-detention-center/5760922002 [https://perma.cc/X2S8-3Q4J]. This article referenced the City of Adelanto’s prior requests to GEO for donations to local causes, such as for the Adelanto’s annual Christmas Parade and its Little League baseball team. It is currently unclear at this time how many Adelanto residents were employed by GEO when the Adelanto facility operated under the IGSA. However, Adelanto residents have spoken on the record in city council meetings in support of GEO’s presence as an employer.

182. The author was not able to find additional documents or records that detail the incentive fees paid to state and local governments by private corporations. The author was only able to access numbers provided in the California State Auditor’s report.

183. Howle, supra note 17, at 15–16.

184. Nomaan Merchant, New Deal Keeps Open Facility That Detains Immigrant Families, Associated Press (Oct. 17, 2018), https://apnews.com/article/cfe75057db534f28aecd0a01e04f9786 [https://perma.cc/7VZ3-4ZTD].

185. See Howle, supra note 17, at 18. For example, the California State Auditor revealed that none of the cities inspected reviewed federal inspection reports on the facilities or ensured that subcontractors developed and implemented effectively quality surveillance programs.

186. The author was only able to find one complete set of publicly available IGSA contracts, which are the CoreCivic-Dilley and Dilley-ICE agreements regarding the South Texas Residential Center. The Associated Press has made these documents publicly available online. The author notes that there were attachments to the Dilley-ICE IGSA agreement, which included Attachment 9 “Quality Control Plan.” Only the Dilley-ICE and Dilley-Core Civic agreements proper, but not the associated attachments, were released to the Associated Press. See Intergovernmental Service Agreement between U.S. Dep’t of Homeland Sec. and the City of Dilley, Texas 1 (2018). See also City of Dilley, supra note 19.

187. The author was able to find an unverified copy of an IGSA between ICE and Concordia Parish in Vidalia, LA. Like the ICE-Dilley agreement, the ICE-Concordia agreement does not clearly set out what the local government must do to facilitate satisfactory completion of contract work. The ICE-Concordia agreement only requires that Concordia obtain ICE approval before engaging a subcontractor. See Intergovernmental Service Agreement Between U.S. Dep’t of Homeland Sec. and Concordia Parish, LA 6 (2019).

188. Howle, supra note 17, at 17.

189. Id. at 18.

190. Id. at 17.

191. Id. at 18.

192. Id.

193. Id. at 20. The California State Auditor commented that local governments may be held liable for issues pertaining to the ICE contracts and detention subcontracts, despite subcontract terms that indemnify and hold local governments harmless for claims arising out of detention subcontracts.

194. GAO Oversight Report, supra note 11, at 14.

195. See Wong Wing, 163 U.S. at 236–38. At the time of writing, Wong Wing has not been overruled.

196. Id. The Supreme Court held that an individual subject to civil immigration detention must not be treated in the same way as an individual convicted of a felony “punishable by deprivation of liberty and property.” Immigration detention must be conducted in a way that does not resemble punitive imprisonment.

197. Id.

198. GAO Oversight Report, supra note 11, at 13–14. GAO found that ICE officials strongly prefer the use of IGSAs because of the shorter lead time required in acquiring an IGSA facility; fewer stringent documentation and other administrative requirements; and fewercompetition-related constraints that are associated with FAR-governed acquisitions.

199. Id.

200. See, supra note 171.

201. OIG ICE Guidelines Report, supra note 1, at 25.

202. After reviewing ICE’s official website and current titles within the Code of Federal Regulations, ICE, after concurring with the DHS OIG recommendations from DHS OIG Pub. No.18-53, does not appear to have promulgated legislative or non-legislative rules concerning the use of IGSAs. The absence of meaningful corrective action by way of promulgating clarifications and guidance is disturbing.

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Amanda Sin is a 2023 graduate of The George Washington University Law School. She received her BA in 2020 from the University of North Carolina at Chapel Hill. She would like to sincerely thank Collin Swan for his time, feedback, and encouragement throughout the drafting process. She would also like to thank her loved ones for their continued support.