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GEO asks 10th Circuit for immunity from immigration detainee employment suit

Individuals detained at the ICE Processing Center in Aurora, Colo., said they were paid just $1 per day to clean the facility.

DENVER (CN) — A private prison contractor asked the 10th Circuit on Monday to grant it qualified immunity from a lawsuit filed by people held at an immigration detention facility in Aurora, Colo., who were forced to work for $1 per day.

Detainees at the Aurora ICE Processing Center, managed by GEO Group, were paid $1 a day in a government-mandated "voluntary work program" and required to clean personal and common areas without pay. Punishment for not cleaning ranged from the TV being turned off up to 72 hours in solitary confinement.

Led by Alejandro Menocal, nine individuals filed the class action against GEO Group on Oct. 22, 2014, accusing the private prison contractor of violating the state minimum wage and forced labor provisions under the federal Trafficking Victims Protection Act.

GEO countered that it was following government orders when assigning work, pay and punishment — and therefore earned government protection.

The district court entered summary judgment on Oct. 18, 2022, denying derivative sovereign immunity to GEO and finding that a jury should decide whether or not the company exploited detainees. GEO Group appealed.

The panel wasted no time during oral arguments Monday morning, with U.S. Circuit Judge Carolyn McHugh cutting through the opening prepared by GEO’s attorney Dominic Draye to ask about jurisdiction.

Chief U.S. Circuit Judge Jerome Holmes followed to press Draye on discretion.

“It’s debatable whether this is derivative sovereign immunity to begin with,” said Holmes, a George W. Bush appointee. “You’re talking about a situation where you’re not supposed to be exercising discretion, you’re supposed to be doing what you’re told to do.”

Holmes asked whether GEO had packed merits challenges under a cloak of sovereign immunity.

Draye, who practices with the firm Greenberg Traurig, argued that GEO worked so closely with U.S. Immigrations and Customs Enforcement that it wasn’t possible to separate their duties from one another.

“Plaintiff [Demetrio] Valerga alleges it was an ICE employee, not a GEO employee who threatened to send him to solitary confinement for not cleaning up,” Draye recalled. “So the agency and company work hand and hand, but this finding leaves one of them holding the bag.”

U.S. Circuit Judge McHugh, appointed by Barack Obama, asked how GEO could justify the wages at the Aurora facility after GEO raised pay at other facilities.

“Here’s where the big fight about discretion takes effect,” Draye explained. “If the direction is to pay at least $1 a day, and you pay $1 a day.”

McHugh pressed back.

“I don’t see how that absolves you from any claim that you didn’t break any laws,” McHugh said. “Whatever the government told you, none of it precluded you from paying more. There’s nothing in the Supreme Court to say, ‘Make sure you give the greatest immunity to a government contractor as possible,’ it’s always been a narrow finding.”

On behalf of the plaintiffs, Jennifer Bennett from Gupta Wessler said government contractors didn’t need qualified immunity.

“GEO hasn’t even tried to argue that interest is at issue here,” Bennett said. “The point of qualified immunity for people directly employed by the government is to preserve initiative. When it comes to a private company we don’t need that, because there are market pressures driving initiative.”

Bennet argued that if government contractors needed immunity from suit, then Congress could give it to them, but the court should not.

U.S. Circuit Judge Joel Carson, appointed by Donald Trump, rounded out the panel. The court did not indicate when or how it would decide the case.

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Categories / Appeals, Government, Immigration

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