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Public Contract Law Journal

Public Contract Law Journal Vol. 52, No. 4

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

Amanda Sin


  • Discusses the government's immigration detention practices and the use of Intergovernmental Service Agreements.
  • Examines the vulnerabilities IGSAs have to mismanagement by the federal government and state and local governments.
  • Recommends that Congress enact legislation to cure the deficiencies by prohibiting IGSAs and requiring the use of direct contracts with ICE.
Our Brothers' Keepers: Reforming Intergovernmental Service Agreements in Immigration Detention
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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. 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). Under this contract, Eloy served as ICE’s contractor to house up to 1500 adult detainees at the Eloy Detention Center. 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.” 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. 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. Eloy would have no involvement in overseeing the contract work’s performance. ICE, despite its attorneys’ misgivings, accepted the proposed contract modification and executed the South Texas Modification. Eloy was now the prime contractor responsible for CoreCivic’s operation of a facility that stood 900 miles away. In short, Eloy raked in approximately $438,000 annually in fees from both the federal government and CoreCivic for its role as a “middleman.”

The story of Eloy, CoreCivic, and the federal government’s complex tripartite relationship is not unique. 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. The federal government has consistently favored the use of IGSAs to meet its immigration detention needs. According to a 2021 report by the Government Accountability Office (GAO), IGSA facilities held approximately fifty-five percent of the average daily detainee population. 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. 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.

However, ICE’s preference for IGSAs has birthed unsettling practices. IGSA cities such as Eloy have, for their role as “middleman,” received per-bed fees from corrections corporations that actually operate the detention centers. 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. 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.

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. 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.” Similarly, former detainee Andrea Yaruro has alleged that guards at the Irwin County Detention Center in Ocilla, Georgia, attacked, assaulted, and neglected her. 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. Both women have made allegations consistent with findings published by the Department of Homeland Security’s Office of Inspector General (OIG). 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. 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. 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. In short, detention providers’ substandard performance may cause detainee deaths and serious injuries.

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 ICE’s preferential use of IGSAs, as opposed to direct contracts, in procuring detention facilities and services. 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). 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.

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.

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. 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.

The Supreme Court has repeatedly affirmed the federal government’s right to accept and reject individuals seeking entry onto U.S. soil. 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.” Therefore, the government faced the task of adjudicating individuals’ entries into the United States. Those who are excluded from the United States are subjected to deportation after the conclusion of civil proceedings.

Congress passed the 1882 Act to Regulate Immigration to provide the Executive Branch with rules on how to distinguish “desirable” from “undesirable” immigrants. 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. 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.” One year later, Congress recognized the need to hold noncitizens prior to their “conveyance… to the frontier or seaboard for deportation.” 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.

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.” However, any actions taken by the government that deviate from temporary detention, civil adjudication, and non-punitive deportation are likely unlawful. 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. 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. 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. In practice, noncitizens deemed “not clearly and beyond a doubt” admissible at the border are, by default, subject to mandatory detention.

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. Upon assuming the legacy agencies’ duties, DHS created three new agencies, including ICE. 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.”

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. 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. 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. As a result, ICE predicted that migration may surpass pre-pandemic levels once pandemic conditions begin to resolve within the U.S. 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.

ICE’s predictions about the post-pandemic era of immigration enforcement appear to be accurate. 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. 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. 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. 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. In sum, the United States is bracing for a record wave of arrivals in the summer of 2023.

Furthermore, the Pew Research Center estimated that between a fifth and a quarter of the American population is comprised of unauthorized noncitizens. Any member of that subset could potentially be subject to pre- and post-adjudication detention if apprehended by law enforcement or immigration enforcement officials. 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.

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. First, the government has directly partnered with private entities, thereby awarding detention facilities and services cost reimbursement contracts through negotiated procurement. This relationship results in the operation of contract detention facilities (CDFs). 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. This relationship results in facilities and services acquired by “riders.” 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. This tripartite relationship results in facilities and services acquired by IGSAs, the complex relationships that are the core focus of this Note.

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

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. 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. This also helped to meet the needs of an ever-increasing detainee population. 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. 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. The early reliance on private contractors was chiefly justified because contractors were able to open and operate facilities at “breakneck speed.” 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. 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.

ICE awards CDF contracts through negotiated procurement. 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. 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.

B. Intergovernmental Service Agreements (IGSAs)

Facilities acquired through IGSAs are established through the federal government’s partnerships with local and state governments. 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. In this two-step delegation, ICE pays the state or local government a per-diem rate to house ICE detainees. Then, the state or local government pays the private detention company the amount that the former had received from ICE. 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. Unlike direct contracts attained through negotiated procurement, IGSAs are not a contract vehicle expressly covered by the FAR. 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.

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. 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. After the 9/11 terrorist attacks, states have engaged with immigration at increased levels. 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. 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. 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.

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. State and local politicians’ strong policy preferences in prison building has consistently prevailed and will likely persist in the coming years. Since the mid-1990s, economically failing or stagnant rural communities have embraced the idea that prisons are a “panacea” for poor economic outcomes. 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.” 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.

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. 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. 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.” She then advocated for GEO’s continued presence as an employer and investor in Adelanto. 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.

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. 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. 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. Here, ICE joins, or “rides,” an existing U.S. Marshals Service contract, which had been formed to procure detention for Marshals’ detainees. 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. In this type of interaction, ICE is the “requesting agency” and the Marshals Service is the “servicing agency.”

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

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. 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. 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. Without access to crucial records, such as the original contract document, ICE cannot readily reference the terms governing contract performance. 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. 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.

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. 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. 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. 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. 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. 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. 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. 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.

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. 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. 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. As mentioned in Part III, a QASP empowers CORs and contracting officials to track incidents of noncompliant performance and issue official Discrepancy Reports. 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. 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.

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. 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. 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. 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. GAO’s investigation indicates that ICE did not evenhandedly respond to Discrepancy Reports issued in 2019. From a pool of fourteen reports reviewed by GAO, eleven reports were actively tracked by the agency’s internal tracking system. One report could not be located. 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.” 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. 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. 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.

Even more egregious is the fact that ICE officials, other than Contracting Officers, have been empowered to approve IGSA waivers. 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. 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. The FAR requires that only Contracting Officers, “acting within the scope of their authority,” may execute contract modifications. Additionally, Custody Management has not shared information regarding waiver approval with Acquisitions Management. 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.

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. 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. 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. The result is a three-party relationship, wherein the sub-federal entity simply functions as a middleman that facilitates exchanges in payments. 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. The most glaring example is that of the aforementioned City of Eloy’s relationship with ICE and CoreCivic. 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. 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. In an Enforcement and Removal Office list published in December 2021, approximately eighty-eight towns and cities host at least one IGSA facility. 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. 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. La Palma is operated under an IGSA between ICE, CoreCivic, and Eloy, Arizona. Likewise, in its 2019 recap report on unannounced inspections of ICE facilities, DHS OIG addressed its recommendation to the Acting Director of ICE. 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. 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.” The California State auditor reported that, in return for awarding private entities their ICE subcontracts, cities and counties received significant fees. For example, the City of Adelanto has received approximately $1 million annually from GEO since fiscal year 2016. 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. The City of Holtville received $0.75 per detainee from contractor IVGC, which amounted to an excess of $157,000 annually. Additionally, city and state residents have reaped benefits, from charitable donations to jobs offered by those private contractors.

It is also disturbing that the exact particulars concerning these incentive fees are not publicly available. 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. 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.

Moreover, state and local governments have had little to no interaction with the detention facilities and the subcontractor private entities. 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. Thus, it is unclear as to what degree of involvement and what type of supervisory obligations the state or city governments have assumed. 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. Adelanto has never regularly inspected its detention facilities.

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. 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. 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, 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.

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. 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. 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. The Wong Wing principles represent a “need,” whereas ICE’s desire for flexibility is merely a “want.” 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. However, in actively choosing to prioritize forming and administering “flexible” contracts, the federal government has made a significant trade-off. 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. 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. No public sources indicate that ICE actually took the corrective action recommended. 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.