Ninth Circuit clears way for humane conditions at Washington ICE facility

(CN) — A Ninth Circuit panel of judges on Tuesday vacated a lower court ruling that prevented Washington from requiring one of the largest immigration detention centers in the country to provide its detainees with sanitary, hygienic and safe conditions at the for-profit facility.

In the 33-page ruling, the appellate panel said that at least part of House Bill 1470, a Washington law that protects the health and safety of civil detainees at for-profit prisons and detention centers, does not unlawfully regulate the federal government in violation of the intergovernmental immunity doctrine.

However, the three-judge panel stopped short of addressing whether the law in question was “impermissibly discriminatory” against GEO Group, instead sending the issue back down for the lower court to decide.

The panel added that it was a “close question” and the best course of action would be “not to decide ourselves.”

“The best course of action is, rather, to allow the district court to do so in the first instance,” U.S. Circuit Judge William A. Fletcher, a Bill Clinton appointee, said in the panel’s opinion.

The legal battle in the Ninth Circuit centers around one of the largest U.S. Immigration and Customs Enforcement processing centers in the country and the lawmakers trying to regulate it.

The Northwest ICE Processing Center is a private, for-profit detainment facility in Washington state. It is operated by The GEO Group, a Florida-based company that runs private prisons and detainment facilities throughout the country under contracts with the federal government.

In 2024, GEO had $2.42 billion in total revenue and a net income of $31.9 million.

GEO has operated the Northwest detention center since 2005 as a contractor for ICE.

Most of the people held at the ICE facility are noncitizen civil detainees awaiting administrative review of their immigration status. Some lack legal status in the United States, while others are lawful permanent residents, some with work authorization.

In 2023, Washington legislators passed House Bill 1470, which directed state agencies to regulate private detention facilities the same way they regulate state prisons. It required standards like adequate food, basic hygiene and a safe environment.

In mid-2023, GEO sued former Washington Governor Jay Inslee and then-Attorney General Bob Ferguson, claiming the law violated the U.S. Constitution’s supremacy clause and impermissibly discriminated against the company.

Although HB 1470 is written in general terms, applying to “for-profit prisons and detention facilities in the state,” GEO’s detention facility is the only such case in Washington. As a practical matter, the appellate panel recognized that the law only applied to the ICE processing center in Tacoma, but clarified that this didn’t necessarily mean it ran afoul of federal law.

Although the panel declined to issue a ruling on discrimination, it did provide the lower court some guidance for its future decision.

To determine whether HB 1470 is impermissibly discriminatory, the panel said the court must evaluate how Washington law treats entities that are “similarly situated” to GEO, stating that the lower court previously erred by comparing the Washington-based immigration facility to prisons instead of civil detention facilities, like mental health facilities or halfway houses.

The panel called it “the key issue” in the case.

“Also like the civil detainees in the NWIPC, individuals confined in these facilities are not confined because they have committed crimes and the conditions of their confinement are not part of any punishment,” the panel ruled.

Washington Attorney General Nick Brown celebrated the decision in an email.

“This is an encouraging outcome in the fight for basic health and safety standards at private detention facilities. We are still reviewing this opinion and potential next steps,” a spokesperson for the attorney general said.

Attorneys for GEO did not immediately respond to a request for comment.

In March 2024, the lower court decided that sections of House Bill 1470 violated the intergovernmental immunity doctrine, which generally immunizes the federal government from state laws that directly regulate and discriminate against it.

The lower court subsequently granted GEO Group a preliminary injunction, preventing Washington from enforcing those parts of the law.

Washington appealed the order shortly after in April 2024.

Oral arguments on the issue were held before the panel in February.

The panel was rounded out by U.S. Circuit Judges Jacqueline H. Nguyen, a Barack Obama appointee, and Ronald M. Gould, a Clinton appointee.

This case was filed in the Western District of Washington.