Excerpted From: Veronica Oviedo, Corporations' Contracts with ICE Have an Explicit and Implicit Duty to Protect Immigrant Detainees, 41 Journal of Law and Commerce 175 (Fall, 2022) (198 Footnotes) (Full Document)


VeronicaOviedoCOVID-19 statistics have flooded our national news for the past two years. However, most news outlets fail to address the ongoing surges of COVID-19 outbreaks and deaths in immigration detention centers. This failure does not include other unaddressed issues in immigration detention centers, including sexual misconduct, medical negligence, and racist violence. Immigrants in detention centers “can be undocumented or documented immigrants, including people whose immigration status is not current, is expired, or is under review.” As such, we question the inaction of the United States government to enforce policies to mitigate these issues. Immigration Customs Enforcement (often referred to as “ICE”), a federal law enforcement agency under the U.S. Department of Homeland Security (“DHS”), contracts with local governments, private prison corporations, and well-known corporations for its detention centers. Immigration detention centers have become a “multibillion-dollar industry.” Immigration detention centers have become an exemplary model that creates a “perverse financial incentive” to keep individuals detained. Corporations profiting from detaining immigrants have an obligation to protect the detainees.

Corporations supplying goods and services to support these detention centers have faced “increasing public and political scrutiny from investors, employees, and activists.” Private prison corporations have explicitly acknowledged in their U.S. Securities and Exchange Commission (“SEC”) filings that “‘increasing activist resistance’ could ‘result in [their] inability to obtain new contracts or the loss of existing contracts' or could ‘impact [their] ability to obtain or refinance debt financing or enter into commercial arrangements.”’ In 2019, well-known corporations including Wayfair, Bank of America, American Airlines, and many others withdrew their goods and services supporting immigration detention centers. Nevertheless, many corporations remain, and other well-known corporations swoop in to obtain a contract with ICE. For both private prison corporations of GEO Group and CoreCivic, their principal business model is to profit from immigration detention centers. Corporations are generally held to no standard of accountability for the ongoing issues within the detention centers. However, upon closer examination of these corporations' government contracts with ICE, there are methods that can hold corporations accountable for the unaddressed ongoing issues in detention centers.

This Note assesses the various legal avenues that can hold a corporation accountable for the unaddressed and ongoing issues in detention centers. This Note proposes that corporations can face criminal and civil liabilities via (i) their government contract standards, (ii) contract misrepresentations, and (iii) the Alien Tort Statute. Other solutions include: (i) shareholder human rights review, (ii) oversight of ICE standards into ICE contracts, (iii) presidential executive order, and (iv) promotion of state bills to exert liability.

Part I of this Note gives a historical and legal framework for detaining immigrants in the United States. Part II describes the different standards ICE must observe to govern the conditions of its detention centers. Part III examines corporations' financial incentives to contract with immigration detention centers. Parts IV through VII analyze solutions to invoke criminal and civil liabilities upon corporations. Part IV analyzes shareholder human rights review and SEC misrepresentation of criminal liabilities. Part V analyzes state bills to exert liability over corporations and the exertion of Alien Tort Statute civil liabilities. Part VI analyzes the solution of expanding President Biden's executive order to include immigration detention centers in excluding private prison corporations from contracts. Part VII concludes by suggesting the use of legal avenues against corporations who have supported immigration detention centers to hold them accountable for mitigating the ongoing and unaddressed issues in those centers.

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Corporations have a direct and indirect responsibility to detainees via their governmental contracts with ICE at immigration detention centers. The legal avenues discussed throughout this Note must be used to hold corporations who have supported detention centers accountable. While these solutions are not an exhaustive list, they highlight critical solutions to resolve these unaddressed issues of inefficient and inadequate conditions of detention centers. With increased public resistance, corporations have begun to withdraw their services or goods from detention centers. However, detention center contracts are a revolving door, with many corporations awaiting to contract with ICE. While ICE has implemented standards and oversight methods, they are inefficient and inadequate solutions. For change to occur, corporations need to be held accountable through civil or criminal liabilities. Corporations can be held civilly liable through breach of contractual standards, the Alien Tort Statute, a presidential executive order to exert liability, mandating standards into all ICE contracts, or state bills. Corporations can also be held criminally liable by the U.S. SEC for misrepresentations through shareholder suits or the incorporation of a shareholder human rights review. The time for change is upon us, and exerting these solutions will not be easy, but necessary.

Veronica Oviedo, Class of 2022, University of Pittsburgh School of Law.