Working While Detained: Litigating One-Dollar-Per-Day “Voluntary” Labor in U.S. Immigration Detention

Across the United States, immigrants held in for-profit detention centers participate, willingly or through degrees of coercion, in a work program that pays one dollar per day. For decades, the courts affirmed the legality of this practice and swiftly dismissed claims that participants in the program qualified for worker protections. But in the past decade, litigators, advocates, and academics have partnered with detained workers to successfully challenge the legality of these labor schemes, most recently scoring a unanimous victory at the Supreme Court. This Note outlines the various causes of action to claim workers’ rights in private immigration detention, particularly the under-researched but successful state law claims. Drawing on lessons learned from litigation across the country, this Note identifies obstacles to and opportunities for ending the exploitation of detained workers.

Table of Contents Show

Introduction

They’re making money off us like we’re not even human. But we’re human beings, and we deserve respect.

—A Hunger Strikers Handbook[1]

On March 7, 2014, 1,200 detainees of the Northwest Detention Center (NWDC)[2] stopped eating.[3] The hunger strike, while fluctuating in size, lasted fifty-six days.[4] Protestors cited a range of grievances, including spoiled and insufficient food, exorbitant commissary prices, and payment of one single dollar for each eight-hour day of work maintaining the facility.[5] Despite the prison-like conditions, none of the strikers were serving criminal sentences. Instead, they were awaiting resolution of their civil immigration proceedings.

NWDC is a sprawling structure built along a toxic waste site in Tacoma, Washington.[6] The 1,575 bed facility is one of the largest immigration detention centers in the United States.[7] A private, for-profit corporation obtained financing from the state to build the facility with the promise of creating local jobs.[8] And yet for years, the company[9] has avoided employing community members by relying on the captive labor force to clean, maintain, and operate the facility.[10] In the facility’s kitchen, The GEO Group (GEO) employed thirteen full-time outside workers but relied on nearly one hundred detainees every day to prepare meals, cook and serve food, and wash dishes.[11] The detainees also staffed the facility as janitors, barbers, and librarians—all for just one dollar per day.[12] Meanwhile, in 2018, GEO made $18.6 million in annual profits from the facility.[13]

Three and a half years after the 2014 facility-wide hunger strike, the Attorney General for the State of Washington filed a lawsuit against GEO alleging the company violated the state minimum wage and unjustly enriched itself.[14] In parallel, detained workers[15] brought their own private class action lawsuit.[16] In 2021, a jury found against GEO in both lawsuits on all counts.[17] Recently, both the Washington Supreme Court and the Ninth Circuit upheld these rulings.[18]

GEO met these victories with resistance. First, GEO appealed the jury’s decision. While the Ninth Circuit denied GEO’s petition for panel or en banc rehearing of its split decision,[19] GEO is already seeking review from the Supreme Court.[20] Second, GEO responded to the jury’s decision by ending the work program at NWDC entirely rather than paying detained workers a lawful wage.[21] Not only did GEO refuse to compensate detained workers fairly, but it also raised the already exorbitant commissary prices for essentials such as toilet paper.[22] Without near-free labor to maintain the facility, it fell into disrepair.[23] GEO then barred the Washington Department of Labor and Industries from inspecting the facility until a court order mandated compliance.[24]

GEO is fighting back against detainees’ labor rights inside and outside the courtroom because NWDC is not an anomaly. This dollar-per-day program is the standard at all immigration detention centers, which are largely run by private companies like GEO.[25] The economic model of profit-driven immigration detention depends on this near-free, captive workforce.[26] Requiring companies to comply with labor laws by challenging these programs in court could disrupt the massive private immigration detention industry. More broadly, recognizing detainees as workers empowers them with agency to assert their rights—not only in court but through organizing and leveraging state and federal agencies.[27] Litigation is one pathway to legally claim worker status and rights.[28] And these parallel lawsuits at NWDC are only two of the various actions challenging labor conditions in immigration detention centers with promising results.[29]

Litigating detained workers’ rights requires knowledge at the intersection of employment, immigration, and constitutional law. This Note provides an overview of the core issues in these legal areas and encourages collaboration in bringing this trans-substantive litigation, synthesizing all available causes of action. This Note relies on doctrinal research, including statutory law and jurisprudence, supplemented by anecdotal interviews. This Note analyzes past and pending litigation, existing academic literature, governmental and non-governmental reports, and investigative reporting. This research is supplemented by interviews with more than a dozen attorneys at private plaintiff-side firms, advocacy groups, and government agencies involved in litigating relevant cases. Finally, this Note draws upon interviews with two organizers at the helm of these efforts: one formerly detained, named plaintiff and one formerly undocumented activist.

Part I introduces private immigration detention, detainee labor, and the federal causes of action to address detainee labor conditions and analyzes case law developments. Part II reviews federal causes of action to address detainee labor conditions and explores recent case law developments. Part III analyzes existing and emerging opportunities to bring state causes of action. Commentators have not examined state law claims as thoroughly as federal claims, despite their success at trial and on appeal. Part III also analyzes the latest cases raising state law claims, including recent appellate decisions,[30] and identifies opportunities and obstacles when bringing these lawsuits. The Note concludes with an overview of both the challenges and possibilities of tackling the injustices of privatized immigration detention through labor lawsuits.

I. Private Immigration Detention, Detainee Labor, and the Role of Litigation

NWDC is only one of 129 detention facilities across the country.[31] As further discussed below, the private operation of NWDC is the norm in immigration detention. Detainees in these majority-private facilities labor under a work program established by U.S. Immigration and Customs Enforcement (ICE). All detainees are in custody of the federal government, but different local and federal government actors and agencies simultaneously challenge and uphold these work arrangements. Affirmative civil litigation, while imperfect, offers one path to addressing these labor conditions.

This Part discusses the massive scale and legal nuances of immigration detention in the United States. It outlines the privatization and consolidation of the for-profit immigration detention industry. It identifies the legal basis for working while detained and describes the lived realities of detainees. It sorts through the government’s role in both maintaining and reforming these labor dynamics. Finally, this Part introduces civil litigation as a central strategy in protecting detained workers’ rights.

A. U.S. Immigration Detention

I felt like my life was violated in every way, like my life didn’t matter.

—Jose Ruben Hernandez Gomez, formerly detained organizer and named plaintiff in Hernandez Gomez v. GEO Group.[32]

The United States operates the world’s largest immigration detention system.[33] On average, ICE detains over 250,000 people annually.[34] The second Trump administration has promised to more than double those numbers.[35] Asylum-seekers,[36] legal permanent residents,[37] and even U.S. citizens[38] are among those held in immigration detention. On average, their detention lasts 46.9 days.[39]

The United States has detained immigrants throughout its history. Immigration detention was essential in implementing racist American projects such as Chinese exclusion and Japanese internment.[40] In this way, detention facilitates the racial project of “sift[ing] . . . [and] separat[ing] the desirable from the undesirable immigrants.”[41]

The present mass scale of immigration detention in the United States is a more recent phenomenon.[42] Spurred by antiterrorism, anticommunism, and the “War on Drugs,” various statutory reforms in the late 80s and 90s increased reliance on detention within the U.S. immigration apparatus.[43] These laws imposed mandatory detention of entire categories of noncitizens, including asylum-seekers,[44] regardless of circumstances.[45] Laws like the Anti-Drug Abuse Act, Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act broadened a wide swath of crimes that trigger mandatory detention and deportation.[46] The Laken Riley Act is the latest expansion of this trend, mandating detention without bond for noncitizens merely suspected of committing crimes such as shoplifting.[47] These statutes not only facilitate the mass detention of immigrants but also the “convergence of criminal law and immigration law.”[48]

In many ways, immigration detention is nearly identical to criminal incarceration.[49] Many immigration detention centers are located in former jails and prisons or even in “shared-use” facilities where individuals awaiting immigration court are held in the same facilities as those convicted of criminal charges.[50] Additionally, local law enforcement collaborates with ICE to detain people released from the criminal justice system, even if charges are dropped, in what is known as the “arrest-to-deportation pipeline.”[51] Both detainees and prisoners are “subject to complete control in a confined setting within a system that has a disparate impact on communities of color.”[52]

Despite the intersections and similarities, immigration detention and criminal incarceration “exist within two separate justice systems.”[53] Unlawful presence in the United States is a civil violation adjudicated in administrative court proceedings.[54] According to the Supreme Court, deportation is not a form of criminal punishment.[55] Similarly, the Court held that immigration detention is “not imprisonment in a legal sense” because it is not punishment for a crime but rather serves to ensure presence for immigration hearings or deportation orders.[56] This distinction ensures those facing immigration detention and deportation do not receive the same constitutional safeguards promised to criminal defendants, such as attorney assistance or a speedy trial.[57]

Plaintiffs in the labor lawsuits described in this Note face retaliation particular to the immigration system, including solitary confinement, deportation, and even physical violence from immigration officials.[58] While some legal claims may create limited opportunities for immigration relief, many do not.[59] Some litigators have partnered with advocacy groups and immigration attorneys as co-counsel in these lawsuits to ensure that plaintiffs are also supported in their immigration proceedings.[60]

B. For-Profit Immigration Detention Industry

Private companies say that ICE is responsible for immigrant human rights, and ICE says that private companies are responsible. Since most people detained by ICE are held in for-profit cages, this accountability merry-go-round means that nobody takes responsibility for detention conditions.

—Unjust Enrichment Zine[61]

Detained workers are formally held in custody of the federal government. But immigration detention is dominated by private companies. Over 90 percent of people detained in ICE custody are held in facilities owned or operated by private corporations.[62]

Recent labor lawsuits target two publicly traded companies: GEO and CoreCivic. These corporations constitute a duopoly in immigration detention.[63] GEO brought in more than one billion dollars in revenue in 2022 from ICE contracts alone, over 43 percent of its total revenue.[64] In 2022, CoreCivic made over half a million dollars in revenue from ICE contracts, approximately 30 percent of its total revenue.[65] President Trump’s mass immigration enforcement agenda only promises greater profits for these companies.[66] After his election, GEO and CoreCivic’s stock prices increased by 105 percent and 50 percent respectively.[67]

Like all government contractors, private immigration detention operators promise to provide the same services for cheaper, but there is “little room to improve the efficiency of incarceration.”[68] Technology and innovation can only go so far to more efficiently guard, feed, and care for detainees.[69] Instead, private facilities must cut costs in order to generate profit.[70] Labor and related costs represented 66 percent of GEO’s operating costs in 2023.[71] Similarly, salaries and benefits made up 60 percent of CoreCivic’s expenses.[72] Paying detained workers one dollar per day to run their facilities saves GEO and CoreCivic anywhere from thirty to over seventy million dollars each per year.[73]

C. “Voluntary” Work Program

We just wanted to be respected as workers. Look, we’re actually doing something—we shouldn’t be working for you for one dollar a day. We’re already getting exploited as it is.

—Jose Ruben Hernandez Gomez[74]

In the Aurora Detention Facility in Colorado, Demetrio A. Valerga worked six days a week stripping and waxing kitchen floors from eleven at night to six in the morning.[75] While Mr. Valerga was paid one dollar per day for this work, he was also required to clean common areas for no payment under threat of being thrown into solitary confinement if he refused.[76] In the Stewart Detention Center in Georgia, Wilhen Hill Barrientos occasionally earned the somewhat exceptional[77] rate of eight dollars per day—when he worked twelve-hour double-shifts in the facility’s kitchen.[78] Meanwhile, the federal minimum wage guaranteed more than ten times Mr. Barrientos’s rate of $0.66 per hour.[79] Mr. Barrientos was twenty years old at the time, awaiting a decision on his asylum claim after fleeing gang violence in Guatemala.[80]

ICE and private detention operators claim these work arrangements are permissible in accordance with national detention policies. Private facilities that contract or subcontract with ICE are subject to the Performance-Based National Detention Standards (PBNDS).[81] Section 5.8 of the PBNDS defines the policy at the center of these labor disputes: the Voluntary Work Program (VWP).[82]

According to the PBNDS, the purpose and scope of the VWP is to “provid[e] detainees opportunities to work and earn money while confined.”[83] The stated expected outcomes include enhancing the facilities’ operations and services through “detainee productivity” as well as reducing the “negative impact of confinement” by decreasing “idleness.”[84] The policy prohibits a detained worker “employed full time” from working more than eight hours per day, forty hours per week.[85] Section K states that compensation, while determined in accordance with facility policy, is “at least $1.00 (USD) per day.”[86]

The PBNDS cites no legal authority to support the creation of the VWP.[87] But this dollar-per-day program implemented in private facilities across the country is based on a 1950 statute.[88] Codified in 8 U.S.C. § 1555(d), the bill authorizes the “payment of allowances (at such rate as may be specified from time to time in the appropriation Act involved) to aliens, while held in custody under the immigration laws, for work performed.”[89] Congress set that rate at $1 per day in 1950,[90] the equivalent of $13.82 in today’s dollars.[91] The dollar rate remained until 1979, when the program line item disappeared entirely from the appropriations budget.[92]

Despite the measly wages, the program provides detainees a way to afford otherwise inaccessible basic necessities. Immigration detention facilities serve moldy and expired food,[93] withhold basic hygiene items such as soap and toilet paper,[94] and charge detainees for phone calls to loved ones.[95] Detainees must purchase edible food and toiletries through the detention centers’ commissary store, often at exorbitant prices,[96] “or go without.”[97] Litigators, advocates, and academics call this a “deprivation scheme,” which pressures detainees into participating in work programs only to hand their meager wages back over to the facility to pay for their necessities.[98]

Under these conditions, approximately half of those detained by ICE for more than a few days accept one-dollar-per-day wages.[99] Some even sign onto waitlists or work for free on a trial basis until they secure a paid position.[100] Some detainees report working to break up the tedium and stress of detention.[101] But as Washington activist Maru Mora Villalpando identified at NWDC, this tedium is a natural outgrowth of immigration detention’s lengthy and uncertain timelines.[102] Within the criminal justice system, the Constitution guarantees defendants basic procedural protections, including timely resolution of their cases.[103] Within the civil immigration system, however, detainees are often stuck waiting indefinite periods of time, dependent on backlogs in immigration court and their own willingness to remain in detention to fight their case.[104] Poor conditions in immigration detention drive detainees to “voluntary” departures and deportations as well as “voluntary” work arrangements.[105]

D. The Government as Policymaker and Party

How do we make sure that every elected official and state agency recognizes they have a role to play in the detention center?

—Maru Mora Villalpando, activist at NWDC.[106]

Federal and state government appear on both sides of legal challenges to detained labor conditions. This equivocation is best exemplified by the “Brief for the United States as Amicus Curiae in Support of Neither Party” filed in one now-settled case in 2019.[107] As the title suggests, the federal government made points favoring both detained workers as well as the private detention center company CoreCivic, notwithstanding the avowed commitment of President Trump and then-Attorney General William Barr to aggressively crackdown on immigration.[108] By contrast, President Biden’s administration filed an amicus brief opposing the Washington Attorney General’s lawsuit against GEO at NWDC.[109]

Government agencies and officials are the natural defendants in lawsuits challenging exploitative work conditions in immigration detention.[110] But suing the government invites a myriad of well-known challenges, including sovereign immunity, both absolute and qualified.[111] Additionally, these lawsuits often require proving detained workers are government employees, which introduces laws and regulations surrounding public employment.[112]

It is unsurprising, then, that all recent lawsuits contemplated in this Note target the private detention center operators rather than federal agencies. The Department of Homeland Security (DHS) and ICE have refused to intervene in these lawsuits.[113] However, even when exclusively targeting private contractors, the federal government’s role is constantly looming over efforts to challenge working conditions in detention. Its shadow generally arises through a variety of defenses rooted in the Constitution’s Supremacy Clause,[114] including derivative sovereign immunity, preemption, and intergovernmental immunity.[115]

Even so, detained workers and advocates are leveraging state and federal agencies to challenge labor violations. Some state agencies have found that detained workers are, in fact, employees with enforceable rights.[116] The Washington Attorney General’s lawsuit against GEO serves as a model for how state government officials are well positioned to challenge these conditions.[117]

Despite these successes, anti-immigrant sentiment is rising, even in supposedly liberal states and localities.[118] This impacts state and federal political willpower to enact remedial legislation,[119] bring lawsuits,[120] and take other agency enforcement actions[121] on behalf of detained workers. In this way, private litigation is a powerful tool in addressing unjust labor conditions in immigration detention.

E. Affirmative Civil Litigation: One Tool in the Toolkit

Outside of Los Angeles, Raul Novoa worked four hours a day and up to seven days a week as a janitor.[122] Later, he worked as a barber up to ten hours a day, every day of the week.[123] Regardless of position, Mr. Novoa was paid one dollar per day.[124] When he complained, his supervisors entered his living quarters, threw his belongings and papers around the room, and forced him to relocate.[125] They threatened to confine him in isolation if he complained further, stopped working, or encouraged others to stop working.[126] Mr. Novoa became the lead plaintiff in a class-action lawsuit against his alleged employer: GEO, the private corporation that detained him at the Adelanto ICE Processing Center.[127] As demonstrated by the suit’s class certification, Mr. Novoa’s experience is not unique.[128]

Civil lawsuits are one avenue to challenge these labor schemes in private immigration detention. Labor lawsuits seek to punish and deter labor violations and may even drive these for-profit detention corporations out of the industry.[129] In a series of email communications obtained through Freedom of Information Act (FOIA) litigation in 2019, GEO officials asked ICE to cover the estimated ten to fifteen million dollars in legal expenses and tens of millions more in potential damages from these cases.[130] ICE declined.[131] These legal expenses and remedies cut directly into the profit margins of private immigration detention corporations.[132]

The courthouse is not always the most effective instrument to remedy injustice. Civil litigation in the United States is slow, costly, and inaccessible to many.[133] Fortunately, litigation is not the only method to address injustice.[134] Detained workers and their advocates have effectively harnessed various other methods to challenge labor practices in privatized immigration detention. People inside and outside detention centers have organized to pressure ICE and the private companies they contract with to change their practices.[135] Detained workers and advocates have found creative ways to pursue remedies through state and federal administrative agencies.[136] Both state and federal legislators have developed policy solutions to address the injustices of private immigration detention.[137] While these non-litigation methods have been successful in various ways, they also have limitations. Detained workers face severe repression and retaliation for their organizing.[138] Administrative remedies, such as penalties from workplace health and safety agencies, remain complicated procedures that still require attorney support and depend on precarious legislation and executive enforcement.[139] And legislation limiting private immigration detention at both the state and federal level has been stymied or overturned, in part thanks to extensive lobbying efforts by the private immigration detention companies.[140]

Litigation, therefore, remains a core effective strategy in upholding and elevating detained workers’ rights, but it is best understood as “just one of the many tools that we use” rather than “the solution,” as described by organizer Maru Mora Villalpando.[141] It is most effective in conjunction with organizing efforts, administrative advocacy, and legislative reforms. For example, litigation can expose information otherwise inaccessible to advocates. While the lawsuit Barrientos v. CoreCivic ultimately settled, the detained workers’ attorneys at the Southern Poverty Law Center obtained many documents throughout discovery and successfully moved to make them publicly available.[142]

1. Summary Chart of Lawsuits Claiming Labor Violations in Private Immigration Detention

Name	Filed		Courts		Main claims		Main defenses			Status
Public Lawsuits
Washington v. GEO Group	2017		W.D. Wash; 9th Cir.; Wash.		WA minimum wage; unjust enrichment		Intergovernmental immunity; derivative sovereign immunity; unjust enrichment counter; failure to join parties (ICE/DHS); preemption			Won at trial, affirmed at the Ninth Circuit, pending writ of cert to SCOTUS.
Private Lawsuits
Nwauzor v. GEO Group (originally Chao Chen v. GEO Group)	2017		W.D. Wash; 9th Cir.; Wash.		WA minimum wage		Intergovernmental immunity; derivative sovereign immunity; unjust enrichment counterclaim; failure to join parties (ICE/DHS); preemption			Won at trial, affirmed at the Ninth Circuit, pending writ of cert to SCOTUS.
Menocal v. GEO Group	2014		D. Colo.; 10th Cir.; U.S. Supreme Court		TVPA; unjust enrichment; CO minimum wage		Derivative sovereign immunity; government contractor immunity; civic duty exception			Lost minimum wage claims in district court; TVPA and unjust enrichment claims pending trial, SCOTUS denied GEO’s attempted interlocutory appeal.
Barrientos v. CoreCivic	2018		M.D. Ga.; 11th Cir.		TVPA; Unjust enrichment		Absurdity doctrine; unjust enrichment counterclaim			Settled after class decertified
Ndambi v. CoreCivic	2018		D. Md.; 4th Cir.		FLSA; NM minimum wage; unjust enrichment		No employee relationship			Lost on Motion to Dismiss
Owino v. CoreCivic	2017		S.D. Cal; 9th Cir.		TVPA; CA labor laws, unjust enrichment, PAGA		IRCA; preemption; lack of personal jurisdiction			Nationwide class certified, discovery in progress
Novoa v. GEO Group	2017		C.D. Cal; 9th Cir.		TVPA; CA labor laws, unjust enrichment		IRCA; derivative sovereign immunity; civic duty exception; preemption			Nationwide class decertified, summary judgment granted, stayed pending Nwauzor
M. Gonzalez v. CoreCivic	2018		W.D. Tex.; 5th Cir.		TVPA; negligence; unjust enrichment		Statutory interpretation (intent)			Settled

2. Common Litigation Obstacles

Most defenses discussed in this Note are particular to the type of claim raised. For example, the civic duty exception generally will only arise if Thirteenth Amendment claims are brought.[143] Supremacy Clause defenses are only invited by raising state law claims.[144] Accordingly, these defenses are analyzed in more detail under the sections below covering those particular claims. But immigration detention companies raise certain defenses regardless of the type of claim. This Section outlines two challenges facing any lawsuit alleging labor violations on behalf of detained workers: the Immigration Reform and Control Act and derivative sovereign immunity.

a. Immigration Reform and Control Act (IRCA)

The Immigration Reform and Control Act (IRCA) is a federal statute that prohibits knowingly employing noncitizens without work authorization.[145] Both GEO and CoreCivic argue that IRCA protects them from liability to detainees for employment-related violations.[146] They claim “it would be absurd” to recognize detained workers as employees when IRCA prevents hiring undocumented people.[147]

This argument is based on the assumption that all detained workers are undocumented. But ICE detains legal permanent residents as well as U.S. citizens.[148] Legal permanent residents, also known as green card holders, are authorized to work and their status remains until they receive a final order of removal in their immigration proceedings.[149] Professor Jacqueline Stevens argues that all detainees, except those waiting for execution of their final deportation orders, are waiting for a determination of their legal status.[150] Accordingly, their work status is inherently unknown, defeating IRCA’s mens rea requirement.[151] The Western District of Washington seemingly acknowledged this when it declined to decide whether IRCA conflicted with Washington State’s definition of employee “because [IRCA] relies on factual determinations about the status of detainees.”[152]

Even if hiring individuals unauthorized to work were an IRCA violation, this should only make companies like GEO and CoreCivic liable for both IRCA and relevant labor violations.[153] Any other outcome would insulate violators from liability, creating perverse incentives for employers to hire and exploit undocumented workers.[154]

IRCA remains a lingering obstacle to successfully bringing claims against labor conditions in detention. Detained workers narrowly overcame this claim in a motion to dismiss in one lawsuit[155] but failed to defeat the affirmative defense on a motion for summary judgment in another case, allowing it to proceed to trial for a jury’s determination.[156] Additionally, where detained workers raise state law claims, defendants argue IRCA preempts state law, a defense discussed further below.[157]

b. “Derivative Sovereign Immunity”

Under the long-standing principle of sovereign immunity, the United States cannot be sued without explicit authorization from Congress.[158] The Supreme Court has found some of that protection extends to federal contractors “authorized and directed” by the government.[159] Contractors commonly refer to this principle as “derivative sovereign immunity.”[160] But the Supreme Court recently ruled that this principle is merely a merits defense, not an immunity.[161]

GEO has repeatedly claimed “derivative sovereign immunity” protects it from liability.[162] Detained workers have successfully defeated this argument at various procedural postures at the trial and appellate court level.[163] The workers argue that the Voluntary Work Program as “directed” by the government does not actually violate any of the claims outlined below. Instead, private operators like GEO and CoreCivic violate these laws through their discretionary execution of the program. As the U.S. government wrote in one amicus brief, ICE only directed the contractors to provide voluntary opportunities to work, not to coerce labor.[164] Additionally, the government only directs these private companies to pay at least one dollar per day through the PBNDS.[165] Accordingly, the government “set a payment floor, not ceiling” and did not direct the private contractors to violate, for example, minimum wage laws.[166]

The principle of derivative sovereign immunity is sometimes called “government contractor immunity”—but this is arguably a distinct defense emerging out of Boyle v. United Technologies Corporation.[167] The government contractor test under Boyle overlaps significantly with preemption,[168] as it requires showing a “significant conflict” between an identifiable “federal policy or interest and the operation of state law.”[169] Detained workers have survived both a motion to dismiss and motion for summary judgment under Boyle.[170]

II. Federal Causes of Action—Literature Review and Case Law Developments

A federal cause of action appears the most obvious path to address violations in federal immigration custody. This Part explores three federal causes of action—the Thirteenth Amendment, the Trafficking Victims Protection Act (TVPA), and the Fair Labor Standards Act (FLSA)—that detained workers have brought in court with varying degrees of success. Existing legal literature has explored each of these federal paths.[171] This Part seeks to summarize their conclusions, incorporate the latest developments from ongoing lawsuits, and highlight paths forward for litigators, advocates, and detained workers.

A. The Thirteenth Amendment

Considering immigration detention is almost entirely privatized, detained workers face an uphill battle raising constitutional claims against these non-state actors.[172] While private state facilities may be liable for constitutional violations through a statutory cause of action,[173] private federal facilities may not.[174] But the Thirteenth Amendment offers a path to overcome this obstacle.

The Thirteenth Amendment contains two sections. The first prohibits both “slavery” and “involuntary servitude” in the United States.[175] The second grants Congress the authority to enforce this provision through legislation.[176] Enacted after the Civil War, the Amendment constitutionally grounded abolition after the Emancipation Proclamation.[177] But the earliest judicial interpretations affirm it “comprises much more than the abolition or prohibition of African slavery.”[178] Instead, the Amendment applies to slavery and involuntary servitude “in all forms, and in all degrees.”[179] Like most constitutional guarantees, noncitizens are also protected by the Thirteenth Amendment.[180] Additionally, Section One of the Thirteenth Amendment is “undoubtedly self-executing without any ancillary legislation,” allowing for a direct private right of action.[181] The Thirteenth Amendment is also the only constitutional protection that restrains private actors, such as GEO and CoreCivic.[182]

Academics and experts cite the Thirteenth Amendment as directly applicable for detained workers facing coercive labor conditions.[183] And yet, plaintiffs have yet to prevail on this claim.[184] Detained workers face various obstacles to make successful Thirteenth Amendment claims. But these challenges are not entirely insurmountable.

First, the Thirteenth Amendment notoriously includes a loophole. The first section states that slavery and involuntary servitude are prohibited “except as a punishment for crime whereof the party shall have been duly convicted.”[185] But courts have already found that this Exceptions Clause is entirely inapplicable to detained workers.[186] Immigration detention is not a punishment for a criminal conviction. Detention centers are instead “merely waiting rooms for immigrants seeking to have their day in court.”[187] Under long-standing Supreme Court precedent, both immigration detention and deportation are civil in nature, not criminal.[188] In Wong Wing v. United States, the Court found the government could not impose hard labor on an immigrant for unauthorized presence because that constituted a criminal punishment.[189] In fact, because they are theoretically not facing punishment, immigration respondents are deprived of various safeguards afforded criminal defendants, such as the right to an attorney and a jury trial.[190]

While detained workers defeat the criminal punishment exception, they must still meet the high and often convoluted bar established by Thirteenth Amendment case law. As Lauren Kares writes in her article “Unlucky Thirteenth,” “[t]he Thirteenth Amendment is notable for its lack of coherent jurisprudence.”[191] One of the few consistent themes in the doctrine is the overall restraint of courts in defining “slavery” and “involuntary servitude.”[192] This judicial deference “creates a considerable barrier to plaintiffs seeking to vindicate Thirteenth Amendment-based rights.”[193] Despite this, the Fifth Circuit suggested in dicta that a detained immigrant coerced into working for minor wages may meet the high and amorphous judge-made standard for a Thirteenth Amendment violation.[194]

Nonetheless, the Fifth Circuit ultimately found that the detained worker’s Thirteenth Amendment claim failed due to the “civic duty exception.”[195] In the scattered evolution of Thirteenth Amendment jurisprudence, courts have discerned various exceptions beyond the textual Exceptions Clause.[196] The civic duty exception traces its roots back to an early twentieth-century case finding the Thirteenth Amendment was “certainly . . . not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc.”[197] Some courts have expanded the civic duty exception to include housekeeping tasks while in civil detention.[198]

Both GEO and CoreCivic raised this civic duty exception as an affirmative defense against statutory claims by detained workers.[199] But the Supreme Court has only applied the civic duty exception to government actors.[200] Two district courts held that the civic duty exception does not apply to private, for-profit corporations like GEO and CoreCivic.[201]

While the Thirteenth Amendment may appear to be a close match for detained workers, judges remain reticent to find implied rights of action[202] and the varied, narrowly construed judge-made jurisprudence is risky.[203] But two federal statutes are well suited to tackle coercive working conditions and subminimum wages: the Trafficking Victims Protection Act and the Fair Labor Standards Act.

B. Trafficking Victims Protection Act (TVPA)

Congress passed the TVPA in 2000.[204] The statute alludes both to Congress’s authority to regulate interstate commerce as well as its power to enforce the Thirteenth Amendment.[205] The omnibus bill includes a wide array of provisions to punish traffickers, provide assistance to victims, and implement mechanisms to prevent trafficking. The bill also contains a provision to protect victims from forced labor.[206]

The TVPA directly resolves many of the challenges arising out of Section One Thirteenth Amendment claims.[207] First, plaintiffs do not face the major procedural hurdle of convincing a judge to find an implied cause of action directly under the Thirteenth Amendment.[208] Second, the TVPA relies on the broader and more expansive Section Two of the Thirteenth Amendment.[209] While Section One prohibits the “narrow but nebulous territory of slavery or involuntary servitude,”[210] Section Two grants broad authority to Congress to prohibit the “badges and incidents” of slavery.[211]

Many are surprised to learn that arguably the most effective cause of action so far in challenging work conditions for detainees is within a human trafficking law. CoreCivic and GEO leverage this reaction in their purposivist defenses against these lawsuits. Both argued that the TVPA only applies to human trafficking and therefore is inapplicable to immigration detention.[212] In some cases, they argued it would be “absurd” to apply the TVPA, as plaintiffs do not allege human trafficking.[213] But courts have consistently rejected these arguments and employed traditional textualist statutory interpretation.[214] The Eleventh Circuit concluded that “the plain language of the TVPA brings within its scope for-profit government contractors operating work programs in federal immigration detention facilities, and such entities are not categorically excluded or shielded from liability under the TVPA.”[215] Following this same textualist approach, the notoriously conservative Fifth Circuit found that “on its face [the TVPA] unambiguously protects labor performed in work programs in federal immigration detention facilities . . . .”[216]

At least five active lawsuits alleging TVPA violations in immigration detention remain ongoing.[217] Most recently, Colorado detained workers' TVPA claims survived a motion for summary judgment and overcame an attempted interlocutory appeal at the Supreme Court.[218]

C. Fair Labor Standards Act (FLSA)

The FLSA establishes nationwide standards for employees, including a minimum wage.[219] The FLSA appears a fitting remedy for detained workers, whose one-dollar-per-day wages fall well below the federal minimum.[220] And yet, two circuit courts spanning four decades concluded the FLSA does not apply to workers held in immigration detention.[221] Scholars and litigators have identified opportunities to challenge the reasoning underlying these decisions.[222]

First, neither the Fourth Circuit in Alvarado Guevara v. I.N.S. nor the Fifth Circuit in Ndambi v. CoreCivic applied the prescribed legal test. Under Supreme Court precedent, courts should look to the “economic reality” of a labor relationship to determine if a worker qualifies as an employee protected by the FLSA.[223] When applied, this test tends to show that detained workers are, in fact, employees.[224] But both the Fourth and Fifth Circuits instead held that the FLSA was never meant to apply to workers in custody.[225]

Second, these decisions overly relied on prison labor cases, treating them as analogous to the civil immigration detention context. In Alvarado Guevara, the Fifth Circuit relied exclusively on prison labor case law to conclude that the FLSA did not apply to workers held in immigration detention.[226] In Ndambi,the Fourth Circuit relied, at least in part, on the Fifth Circuit’s reasoning in Alvarado Guevara.[227] But as discussed above, the analogy between incarcerated workers and workers held in immigration detention is inherently flawed.[228] Case law denying FLSA protections for prisoners often hinges directly or indirectly on the Exceptions Clause of the Thirteenth Amendment, which does not apply to immigration detainees who are not serving time for criminal convictions.[229]

Lastly, the Ndambi and Alvarado Guevara decisions both relied on their interpretations of the purpose of the FLSA, concluding that FLSA protections were not intended for detained workers because their well-being is already provided for by the facility and they work outside of the traditional labor market.[230] This departure from the text contravenes traditional principles of statutory interpretation.[231] The FLSA expressly enumerates specific and limited exceptions to the otherwise broad definition of “employee.”[232] There is no exemption for those in immigration detention and various cases acknowledge that no categorical exemption exists for prison laborers either.[233]

The Ndambi court cited precedent reasoning that no “express exception” exists in the FLSA for prisoners because it was “too outlandish” for Congress to consider at the time.[234] This conclusion is based on the logic that the FLSA’s goal of ensuring a “minimum standard of living” and “general well-being of workers” does not apply to custodial labor.[235] According to this reasoning, the FLSA was not intended to protect detained workers because their basic needs are already provided for by the facility.[236] But the Supreme Court already rejected the premise that FLSA coverage ceases when a worker’s food, shelter, and clothing are provided.[237] While workers may receive room and board as part of wages in kind,[238] acceptance of the arrangement must be “voluntary and uncoerced.”[239] Because detainees are required to live and eat in the detention center, their cost of detention cannot conceivably be considered part of their pay.[240] Additionally, the Ndambi court accepted as sufficient that CoreCivic is “morally and legally bound to meet detainees’ basic needs,” despite acknowledging plaintiffs’ claims that CoreCivic is failing to provide those necessities.[241] This disputed fact, not resolvable at the motion to dismiss stage, undermines the premise that detained workers do not need FLSA protections to ensure a “minimum standard of living.”[242]

Both the Ndambi and Alvarado Guevara decisions reasoned that custodial labor falls outside the “free labor market” and “American industry” contemplated by the FLSA.[243] But slight variations in detained worker wages according to the demand for labor suggest a “rudimentary labor market.”[244] Additionally, this custodial labor serves private, for-profit corporations operating in the market. By slashing labor costs, these companies undercut competitors for similar federal contracts.[245] This dynamic pressures other private detention companies to engage in similar labor violations to remain competitive, encouraging a “race to the bottom” that the FLSA sought to prevent.[246]

Despite embracing purposivist arguments, the Ndambi and Alvarado Guevara courts did not reckon with purpose-driven precedent that encourages an expansive reading of FLSA coverage.[247] The Fourth Circuit reasoned that detained workers do not fit the “traditional employment paradigm” the FLSA was enacted to protect.[248] But the Supreme Court held that the FLSA’s expansive coverage “stretches the meaning of ‘employee’” to cover parties not traditionally contemplated.[249] Nonetheless, the Ndambi and Alvarado Guevara precedent will likely limit this capacious application to detained workers.

III. State Causes of Action—Emerging Opportunities and Challenges

The only lawsuits alleging workers’ rights violations in immigration detention that have proceeded to trial (and won) are the parallel public-private lawsuits at NWDC. In Nwauzor and Washington v. GEO, the plaintiffs brought no constitutional or federal statutory claims. Instead, both lawsuits exclusively contemplated state law claims—specifically under Washington’s minimum wage statute and common law unjust enrichment.[250] These were not the first lawsuits to allege that private detention centers violated state laws, and others have followed suit.[251] These lawsuits highlight the challenges but also the power of leveraging state laws to address the violations of workers’ rights in immigration detention.

State causes of action may not appear ideal to address the national problem of workers’ rights violations in federal immigration detention. State law claims are, by definition, geographically bound. Moreover, empowering states to address immigration-related matters may backfire. States across the country are leveraging their local laws to increase detentions, deportations, and human rights abuses against immigrants.[252] State lawsuits may simply drive ICE and its contractors out of states enforcing their labor laws and into these more “hospitable jurisdictions.”[253] This could result in detainees being transferred further from their families and into jurisdictions with fewer protections.

However, these valid concerns should not necessarily stop advocates from considering state law claims. As organizer Maru Mora Villalpando counters, “ICE transfers people all the time, every single day. [This is] not just about being able to visit loved ones in horrible conditions.”[254] And state law offers a “reservoir of possibility to hold contractors accountable in ways that the federal government does not.”[255] Profit-driven detention corporations like GEO and CoreCivic rely on their near-free, captive workforce,[256] and requiring companies to comply with labor laws could disrupt the massive private immigration-detention industry. With more minimum wage and unjust enrichment class actions, detained workers may have their day in court, receive compensation, and financially impact institutions profiting from their detention.

A. Minimum Wage Statutes

Like all state laws, minimum wage statutes vary across the country. Some states have no minimum wage provisions at all.[257] While thirty-four states have a minimum wage higher than the federal $7.25 rate, many state statutory schemes closely emulate the FLSA.[258] In these jurisdictions, courts turn to FLSA precedent, including the economic realities test, to determine who is protected under state minimum wage laws. For example, the Ndambi plaintiffs raised minimum wage claims under both the FLSA and the New Mexico Minimum Wage Act (NMMWA).[259] But both parties stipulated that the NMMWA was interpreted in accordance with the FLSA.[260] So when the court threw out the plaintiffs’ FLSA claims, their NMMWA claims went with them.[261]

Some states apply their minimum wage statutes more broadly than the FLSA, potentially providing a more effective remedy for detained workers in these jurisdictions. For example, the California Minimum Wage Law (CMWL)[262] is expressly separate from and more expansive than the FLSA.[263] As a result, two federal courts in California rejected defendants’ attempts to import unfavorable FLSA case law and ruled in favor of detained workers on their CMWL claims.[264]

California is one of a handful of states embracing a more expansive alternative to the FLSA’s economic realities test.[265] Known as the ABC test, it presumes a worker is a covered employee unless the employer can prove three distinct elements.[266] The test has been lauded as worker friendly.[267] But the test is generally applied to distinguish employees from independent contractors. The Novoa court found there was no question of whether detained workers were independent contractors, and as such held the ABC test was inapplicable in determining whether detained workers are employees under the CMWL.[268] While the proliferation of the ABC test offers an opportunity to protect more workers, it may not reach detained workers.

In fact, Washington state is one of many states that has not adopted the ABC test,[269] and yet a jury and the state’s Supreme Court found detained workers are covered under state minimum wage law.[270] Like the California cases, the claims under the Washington Minimum Wage Act (MWA) survived in part because they were distinguished from the FLSA.[271] The MWA’s unique structure also supported the conclusion that workers held in immigration detention are covered employees. The MWA defines who is protected under the act through a series of narrowly construed statutory carve-outs.[272] As the Washington Supreme Court held in Nwauzor, “[b]y its very definition, ‘employee’ is defined by its exemptions.”[273] The court found workers detained in private immigration detention did not fall under any of the applicable exemptions and were therefore covered employees protected by the MWA.[274]

Unique statutory schemes defined by circumscribed categories have not always served detained workers bringing state minimum wage claims. In 2015, the court in Menocal v. GEO Group dismissed plaintiffs’ claims under the Colorado Minimum Wage Order (CMWO).[275] At the time, the CMWO only applied to employers and employees in four specific industries.[276] While the Nwauzor plaintiffs only needed to prove the Washington law carve-outs were inapplicable, the Menocal plaintiffs had to argue the industry of immigration detention fit into one of the statutory categories. The Menocal court also embraced the reasoning in the FLSA case Alvarado Guevara to hold that the plaintiffs, like prisoners, could not be employees.[277]

Until the Ndambi and Alvarado Guevara precedent is successfully challenged, detainees making one dollar per day will struggle to vindicate their rights under local minimum wage laws that follow the FLSA. But state minimum wage statutes that do not strictly follow the FLSA, like in California and Washington, may offer an effective remedy for workers in immigration detention.

B. Unjust Enrichment

Unjust enrichment is a “broad and relatively under-theorized” legal doctrine.[278] The concept reaches back to the Roman Empire and even earlier to ancient China.[279] Rooted at the intersection of common law and equity, the doctrine has been significantly shaped by academics.[280] Unjust enrichment can be understood as the transfer of value “without adequate legal basis.”[281] A defendant is generally unjustly enriched if they (1) receive a benefit (2) at the plaintiff’s expense and (3) where retaining the benefit without compensation would be unjust.[282]

Almost all major lawsuits challenging work conditions in private immigration detention raise state unjust enrichment claims.[283] State jurisprudence varies but the common law action exists in some form across all fifty states.[284] Unlike minimum wage claims, detainees do not need to prove they are “employees” to show defendants unjustly benefited from their near-free labor. While damages for statutory wage claims are capped at the minimum wage, “restitution for unjust enrichment is based on the fair market value of the labor performed.”[285]

The broad and flexible claim appears to map neatly onto the reality of detained workers. Private detention centers receive a benefit at the expense of detainees. Conservative estimates suggest that from 2018 to 2022, detainee labor saved GEO and CoreCivic $265 million in labor costs.[286] Defendants argue that detainees cannot raise unjust enrichment claims because they did not have a “reasonable expectation” of market value payment for their labor. But courts in Georgia, Washington, and Colorado dismissed this argument, finding that a reasonable expectation of payment was not necessary to claim unjust enrichment.[287] Alternatively, defendants claim they do not benefit from detainee labor but instead lose out on profits. GEO and CoreCivic contracts structure their payment as a certain profit margin percentage of their costs.[288] They argue that replacing detainee labor with fully compensated employees would actually increase their profit margins by increasing their total expenses.[289] For example, if their contracts grant them a 30 percent profit margin over all their expenditures, increased labor costs would actually increase their overall profits. But courts have rejected this argument, noting that the companies’ low costs, thanks to detained labor, grant them a competitive advantage in securing those ICE contracts in the first place.[290]

The core issue is the third element: whether it would be “unjust” for the defendants to retain this benefit. This element often hinges on other alleged violations, either minimum wage or forced labor as discussed above. For example, in Barrientos, the district and circuit courts agreed that plaintiffs’ unjust enrichment claim depended on a finding that detainees were coerced into working, in alignment with the raised TVPA claims.[291] Meanwhile, the district court in Menocal held that the unjust enrichment claim was “largely based” on the plaintiffs’ minimum wage allegations, and not the TVPA claims also raised.[292]

But the derivative nature of the claim can lead to a catch-22 readily exploited by defendants. Defendants argue unjust enrichment claims must be dismissed if the underlying claim fails. But where the underlying claim survives, defendants then argue unjust enrichment claims must be dismissed as duplicative.

When unjust enrichment hinges on another meritorious claim, it may ride the coattails of that underlying claim.[293] But defendants can also successfully dismiss an entire case by poking holes in the underlying claim, as in Ndambi. There, the district court first dismissed plaintiffs’ state and federal minimum wage claims.[294] The court then concluded that the plaintiffs’ unjust enrichment claim was “entirely dependent” on these minimum wage violations and therefore must be dismissed as well.[295] On review, the Fourth Circuit threw out plaintiffs’ unjust enrichment claims in one short footnote, as the plaintiffs conceded their unjust enrichment claim failed if they lost on their minimum wage claims.[296] But Menocal offers an alternative resolution. There, the district court permitted plaintiffs to proceed with their unjust enrichment claims, despite acknowledging they were “largely based” on dismissed minimum wage claims.[297]

Where the underlying claim survives, defendants argue unjust enrichment claims should be dismissed as duplicative. Courts often recognize unjust enrichment as an equitable remedy that is unavailable when an alternative adequate remedy exists.[298] For example, unjust enrichment is generally unavailable if an enforceable contract governs the dispute, and therefore contractual remedies are available.[299] Generally, plaintiffs can still proceed with unjust enrichment claims as pleadings in the alternative.[300] But where unjust enrichment claims overlap with other claims, plaintiffs face allegations of “recover[ing] twice for the same injury.”[301]

Despite the overlap, it is still possible to recover under both unjust enrichment and underlying violations. The Washington Attorney General sued GEO for injunctive relief under the state minimum wage statute and also disgorgement for unjust enrichment.[302] In parallel, a private class action sought damages for minimum wage violations.[303] In 2023, after both suits won on all claims at trial, the Washington Supreme Court held that the damages award to the private class did not foreclose equitable relief to the state.[304] Additionally, lawsuits raising both unjust enrichment and TVPA claims have survived motions to dismiss[305] and even motions for summary judgment.[306]

Interestingly, both GEO and CoreCivic have raised an unjust enrichment counterclaim, often overlapping with an offset affirmative defense.[307] The companies argued detained workers received the benefit of food, lodging, and other necessities and that payment of damages would unfairly burden the companies.[308] Therefore, defendants argued that if the plaintiffs prevail, the companies should be able to recover all costs associated with detaining the plaintiffs.[309] Plaintiffs moved to dismiss this claim, pointing out that ICE already fully reimbursed the companies for these expenses.[310] While the Washington district court dismissed the unjust enrichment counterclaim against Washington state,[311] the court rejected plaintiffs’ pretrial motions in the private class action to dismiss the counterclaim, which went all the way to trial.[312] By contrast, a Georgia district court quickly rejected this counterclaim, concluding: “Quite frankly, CoreCivic’s audacity in claiming that it should be compensated for providing basic necessities to detainees who it contracted to detain is astonishing.”[313]

Unjust enrichment is a promising, although under-analyzed, cause of action for detained workers. But its success often hinges on the success of the underlying claim for forced labor or minimum wage violations and then convincing the court to permit recovery under both theories.

C. Supremacy Clause Defenses: The Main Obstacle to State Causes of Action

The Nwauzor and Washington lawsuits won a combined verdict of $23.2 million against GEO for violating Washington state’s minimum wage statute and unjustly enriching itself at the NWDC.[314] Despite this major victory, the decisions remain disputed on appeal.[315] The Biden administration’s DOJ filed an amicus brief in support of GEO.[316] The DOJ argued that the Constitution’s Supremacy Clause prevented the application of Washington state law to detained workers in private immigration detention under the doctrines of preemption and intergovernmental immunity.[317] These Supremacy Clause defenses are the main obstacle to detained workers’ state law actions.

The Supremacy Clause of the U.S. Constitution states that federal law “shall be the supreme Law of the Land.”[318] State law may be unconstitutional under the Supremacy Clause in two ways.[319] First, contrary state law may be preempted by federal law.[320] Second, state law cannot directly regulate or discriminate against the federal government.[321] Both preemption and intergovernmental immunity limit states’ ability to regulate the federal government.

Private federal government contractors are increasingly appealing to these two federalism doctrines to insulate themselves from state law liability.[322] But as Professor David Rubenstein discusses in his piece Supremacy, Inc., these doctrines do not fit neatly onto increasingly outsourced private contractors.[323] Private contractors, unlike the federal government, are already unimpeded by constitutional and statutory public law.[324] By expanding these Supremacy Clause doctrines to private contractors, the federal government effectively shields itself and avoids liability.[325] As detailed below, detained workers have successfully pushed back on attempts to expand these doctrines to private contractors like GEO and CoreCivic.

1. Preemption

Under the Supremacy Clause, federal law may preempt “contrary” state law.[326] State law may be contrary to federal law in three different circumstances. First, where the federal government expressly states its intent to preempt state law.[327] Second, where the federal government establishes a comprehensive regulatory scheme that “occup[ies] the field” in that area.[328] And third, where federal and state law conflict such that it is a “physical impossibility”[329] to comply with both or state law “stands as an obstacle” to congressional objectives.[330] Both GEO and CoreCivic have raised each of these preemption arguments in response to detained worker state law actions.

Preemption analysis begins with the “basic assumption that Congress did not intend to displace state law.”[331] And where the state acts within its historic police powers, courts presume no preemption.[332] Courts have consistently found that labor law standards, such as minimum wage statutes, “fall[] within the traditional police power of the State.”[333] The Ninth Circuit held that “the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers.”[334]

But “at first blush,” preemption seems to favor immigration detention contractors “given the long history of federal legislation and agency action in the area of immigration detention generally.”[335] The federal government maintains broad and extensive authority over immigration.[336] Accordingly, the U.S. Supreme Court has regularly struck down state laws seeking to regulate in the field of immigration.[337] Private immigration detention companies appeal to this principle in defending against state labor claims. They point to extensive federal regulation in the areas of immigration detention,[338] registration,[339] and employment.[340]

These arguments appear persuasive “at a high level of generality.”[341] But “[a]fter peeling back the rhetoric,” courts have consistently rejected these broad, sweeping preemption arguments.[342] Instead, courts have narrowed the “pertinent regulatory field” to immigration detainee wages.[343] In doing so, courts have rejected appeals to “a hodgepodge of federal statutes”[344] that regulate immigration generally, and instead have “examin[ed] the actual statutes and regulations, on the issue of detainee wages.”[345] Courts generally look to two particular statutes as most relevant for preemption analysis in this area: the IRCA and the statute covering immigration expenses known as section 1555(d).

IRCA imposes civil and criminal penalties on employers who knowingly hire immigrants without legal work authorizations.[346] One statutory reading understands these penalties as demonstrating congressional intent to keep noncitizens out of the U.S. workforce.[347] But an alternate statutory reading indicates that IRCA is actually meant to protect undocumented workers from discrimination, abuse, and exploitation.[348] Congress sought to “remove the economic incentive for employers to exploit and use” undocumented workers.[349] The question of the correct underlying purpose of IRCA is relevant here because the “ultimate touchstone in every preemption case” is congressional intent behind the regulation at issue.[350] Following the latter reading, enforcement of state workplace protections does not conflict with but rather furthers Congress’s objectives in passing IRCA.

Private immigration detention companies argue IRCA expressly preempts state law, occupies the field of detainee wages, and conflicts with state labor laws. IRCA expressly states that it “preempt[s] any State or local law imposing civil or criminal sanctions . . . upon those who employ” unauthorized workers.[351] GEO and CoreCivic argued that damages and restitution sought under state law claims for labor violations constitute “sanctions” for hiring unauthorized workers.[352] Courts have consistently rejected this argument.[353] Remedies such as backpay for violating labor laws do not appear to constitute “sanctions.”[354] Even if they did, none of the alleged state law claims seek damages or restitution for hiring unauthorized workers but rather for labor violations applicable regardless of work status.[355] Courts similarly rejected defendants’ arguments that IRCA “preempts the entire field” of immigration employment[356] or immigration detainee wages.[357]

Courts have more seriously considered whether state minimum wage laws conflict with IRCA. In Novoa, the Central District of California cited California precedent finding state wage laws do not conflict with or create an obstacle to IRCA.[358] The Novoa court recognized the “inherent tension” in allowing undocumented workers to raise claims arising from illegal employment.[359] But the court ultimately concluded that the alternative would only incentivize employers to violate both federal and state laws.[360] By contrast, the Western District of Washington in Washington v. GEO and Nwauzor v. GEO seemed to implicitly acknowledge a potential conflict between IRCA and Washington’s minimum wage law.[361] GEO argued it would be impossible to comply with IRCA, which prohibits hiring of unauthorized immigrants, and the state minimum wage provision, which would require GEO to treat detained workers as employees.[362] The court denied GEO’s motion to dismiss because “it relie[d] on factual determinations about the status of detainees” but acknowledged the issue “may become ripe at summary judgment or at trial.”[363] Notably, GEO did not raise any IRCA preemption arguments on appeal at the Ninth Circuit.[364] The DOJ’s amicus brief similarly made no IRCA preemption argument.[365] Instead, both parties argued that section 1555(d) preempted state law claims.

Section 1555(d) authorizes the “payment of allowances (at such rate as may be specified from time to time in the appropriation Act involved) to aliens, while held in custody under the immigration laws, for work performed.”[366] Congress set the allowance rate at “not in excess of” one dollar per day up until 1979, when the INS removed the program entirely from the appropriations budget.[367] Section 1555(d) originally appeared in a 1950 bill authorizing various recurring administrative expenses for the DOJ, including the federal immigration agency housed under it at the time.[368] Professor Anita Sinha identifies dual purposes underlying this authorization for the payment of detained workers: security and humanitarian concerns.[369] First, McCarthyism was increasingly reliant on immigration enforcement to detain and remove suspected communists, and nominally paid labor allegedly maintained order in detention.[370] Second, the provision was modeled after the newly ratified Geneva Convention Relative to the Treatment of Prisoners of War.[371] Compliance with state minimum wage and unjust enrichment laws does not seem to undermine either identified purpose.

Both GEO and CoreCivic have argued section 1555(d) occupies the field of detainee wages and that state laws conflict with or undermine the statute’s objectives. Courts dismissed GEO and CoreCivic’s assertions that this “one subsection” creates a “‘pervasive’ or ‘exhaustive’ set of regulations on detainee wages” sufficient to occupy the field.[372] Both the Central District of California and the Western District of Washington held that Congress “abandon[ed]” appropriations for this purpose after 1979.[373] This disregard “refutes any reasonable inference that Congress left no room for states to supplement the field.”[374]

In Owino, the Southern District of California found this same fact prevented a finding of conflict preemption.[375] The Owino court found there was a conflict between California’s minimum wage law, which required payment well over $1 per day, and the 1978 Appropriations Act, which “require[ed] no more than $1/day.”[376] But the Owino court ultimately found the appropriations bill did not “still control[] to this day.”[377] The court acknowledged this was a “close question” and did not “foreclose the possibility” that Congress did in fact intend to bind future parties.[378] Nonetheless, Owino found that Congress failed to demonstrate “clear and manifest purpose” and therefore rejected CoreCivic’s motion to dismiss under this theory of conflict preemption.[379]

The Biden administration filed an amicus brief on behalf of GEO in their Ninth Circuit appeal of Nwauzor and Washington.[380] The DOJ conceded that section 1555(d) does not conflict with Washington’s minimum wage: The one-dollar-per-day rate operates as a floor, which does not prevent contractors from paying greater amounts.[381] Instead, the federal government argued obstacle preemption, claiming state laws “will undermine the Program Congress has established.”[382] The government argued that the application of state minimum wage laws would “imperil the Program’s ongoing viability,” pointing to the increased unreimbursed costs and the suspension of the work program at NWDC.[383] The Ninth Circuit rejected this argument, finding section 1555(d) did not obstacle preempt Washington’s minimum wage law.[384] Much like the district court cases analyzing field preemption, the Ninth Circuit found the appropriations act setting the one dollar rate was “no longer in force.”[385] But the court went on, finding that even if it were in force, it still would not preempt state minimum wage law.[386] The court identified that the appropriations act only established a cap for reimbursement by the government—not for payment by a contractor.[387] More powerfully, the court found the appropriations act only contemplated detainees held in government-run facilities, not private, for-profit contractors.[388] GEO is appealing the decision to the Supreme Court.[389]

Private immigration detention corporations consistently invoke preemption to shield themselves from state law claims. These companies largely cite to IRCA and section 1555(d) but also to the FLSA,[390] the Immigration and Nationality Act (INA),[391] and even their own contracts with the government.[392] Despite the persistence of these detention companies, detained workers have so far largely prevailed against all claims of express, field, and obstacle preemption.

2. Intergovernmental Immunity

In the seminal case McCulloch v. Maryland, Chief Justice Marshall interpreted the Supremacy Clause as preventing states from “retard[ing], imped[ing], burden[ing], or in any manner control[ing]” the federal government.[393] Considering McCulloch v. Maryland ultimately found a state tax on a federal bank unconstitutional, the concept is often called “intergovernmental tax immunity.”[394] But courts have extended the doctrine beyond taxation.[395] Intergovernmental immunity shields the federal government from both direct regulation and discrimination by the states.[396]

To what extent does intergovernmental immunity apply to private companies like GEO and CoreCivic?[397] A long line of precedent applies intergovernmental immunity not just to the federal government but also to direct regulation of its “instrumentalities”[398] and discrimination against “those with whom it deals.”[399] An “instrumentality” must be “so closely connected to the Government that the two cannot realistically be viewed as separate entities.”[400] Most federal contractors do not reach this high bar.[401] But the Supreme Court has also concluded, in dicta, that “a federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor.”[402] Drawing on this precedent, the Ninth Circuit concluded in a footnote that “[f]or purposes of intergovernmental immunity, federal contractors are treated the same as the federal government itself.”[403]

And yet, in reviewing detained workers’ Washington state law claims against GEO, a split Ninth Circuit majority recently held that “[f]or purposes of intergovernmental immunity, federal contractors are not equivalent to the federal government.”[404] The court detailed the many “significant differences” between government entities and private contractors.[405] Citing precedent from the early nineteenth century, the majority concluded that “states may impose some regulations on [private] federal contractors that they would not be able to impose on the federal government itself.”[406]

Detained workers have successfully overcome GEO and CoreCivic’s arguments that state law claims constitute either direct regulation or discrimination against the federal government.[407] A state regulation that merely increases costs to the federal government generally does not constitute direct regulation in violation of intergovernmental immunity.[408] So while the federal government might ultimately absorb the increased labor costs to run immigration detention facilities, courts have found state minimum wage laws do not constitute unlawful direct regulation.[409] Additionally, the Central District of California found GEO was not an “instrumentality” of the federal government and therefore could not appeal to intergovernmental immunity to shield it from direct state regulation.[410]

The issue of discrimination is arguably more complex. State laws are discriminatory if they “single out” the federal government or its contractors or regulate them unfavorably due to their governmental status.[411] To successfully invoke immunity from this discriminatory treatment, the government or its contractor must identify a “comparable reference group” and prove inferior relative treatment.[412] This is particularly difficult in the context of immigration detention, which “has no clear analogs.”[413] Immigration detention is an “ostensibly civil system that notoriously mimics criminal incarceration in key respects.”[414] Because immigration detention is a civil system, the Thirteenth Amendment Exceptions Clause permitting forced labor of people convicted of crimes does not apply. This makes jails and prisons an improper comparable reference. But what about other forms of civil detention? Most states do not apply minimum wage laws to pretrial detainees,[415] civilly committed sex offenders,[416] or involuntarily committed psychiatric patients.[417] But the Ninth Circuit rejected these comparisons in the combined Washington cases.[418] Unlike most criminal incarceration and other forms of civil detention, immigration detention is almost entirely privately operated.[419] Accordingly, the Ninth Circuit held that the comparable reference group is not other state facilities—but rather privately operated state facilities.[420] While there are no such facilities in Washington, the divided Ninth Circuit embraced the Washington Supreme Court’s ruling that the Minimum Wage Act would apply equally to such a facility.[421] In Novoa, the Central District of California denied cross motions for summary judgment on intergovernmental immunity due to “material disputes.”[422] But the court similarly embraced other privately run state facilities as the appropriate comparison group.[423]

Intergovernmental immunity remains one of the greatest obstacles to bringing state claims on behalf of detained workers. But recent case law has limited the defense to claims of discrimination, dismissing direct regulation claims. Detainees, litigators, and advocates are likely to have the most success defending against these claims by emphasizing the unique nature of the privatized civil facilities and directing courts to continue down their line of reasoning requiring close comparators.

Conclusion

Success to me is to put a stop something that’s unjust. To me, that’s success. Well, that’s a small victory. Success would be like these systems don’t exist. That would be victory, having this exploitation cease . . . . We know this is an ongoing battle, as long as these places exist there are gonna be violations.

—Jose Ruben Hernandez Gomez.[424]

In 2023, two years after their historic jury trial win, detainees at the Northwest Detention Center went on seven hunger strikes.[425] In February of 2024, armored guards deployed tear gas against hunger strikers and held them at gunpoint.[426] And even after a jury found detained workers were owed a legal wage, GEO refused and instead ended the work program entirely at NWDC.[427] The fallout since the lawsuit at NWDC exposes the reality of immigration detention: Workers’ rights violations are only one of the many human rights violations permeating the privatized system.

The federal and state law claims outlined in this Note offer one path to challenge this dehumanization entrenched in the immigration detention system and disrupt the industry that profits from it. While the Trafficking Victims Prevention Act remains arguably the most successful federal cause of action, advocates and litigators still have room to argue for the application of the Thirteenth Amendment and the Fair Labor Standards Act to detained workers. Meanwhile, state claims remain an underappreciated path with great potential. Recent victories in Washington, Colorado, and California demonstrate that state minimum wage and unjust enrichment claims provide a potent legal tool to challenge the for-profit detention industry, successfully overcoming complex Supremacy Clause defenses.

Multidisciplinary and trans-substantive advocacy, inside and outside the courtroom, offers the best chance of successfully challenging private immigration detention through workers’ rights. Policy advocates can further expand state minimum wage laws to include detained workers. Litigators can continue to push back on private federal contractors shielding themselves behind Supremacy Clause defenses. Academics can demystify the undertheorized claim of unjust enrichment. There is also a need for greater research and partnership between detained workers and advocates, litigators, and academics to understand organizing efforts within and outside detention centers as well as opportunities and pitfalls of state and federal administrative remedies. Ultimately, by targeting the corporate greed that sustains the system, these legal challenges seek to disrupt the system, restore human dignity, and truly champion workers’ rights for all.

Copyright © 2026 Rebecca Cooley, J.D. 2025, University of California, Berkeley, School of Law. This Note is dedicated to immigration detainees facing and fighting injustice. This Note was only possible thanks to the advocates championing detained workers’ rights, especially those who took time away from their efforts to share their knowledge with me. A very special thank you in particular to Jose Ruben Hernandez Gomez, Maru Mora Villalpando, Andrew Free, Mariel Villarrel, Priya Patel, and Serafin Andrade. Thank you to my professors Diana Reddy, Alexa Koenig, Eric Stover, David Hausman, and Urmila Taylor for your insights and support. And thank you to the excellent team at the California Law Review.

       [1]. J. Cipriano Ríos Alegria, Angelica Cházaro, Tomás Madrigal, Murphy Mitchel, Josefina Mora, Maru Mora Villalpando, Wendy Pantoja, Naomi Strand & Megan Ybarra, A Hunger Strikers Handbook 11 (2017) [hereinafter Hunger Strikers Handbook] (emphasis added).

       [2]. ICE rebranded and renamed NWDC as the Northwest ICE Processing Center (NWIPC), but the facility remains operated by the same for-profit corporation, The GEO Group, Inc. (GEO). See Cascade PBS Staff, ICE Rebranded the Tacoma Detention Center. It’s Still Inhumane, Cascade PBS (Sep. 24, 2019), https://www.cascadepbs.org/opinion/2019/09/ice-rebranded-tacoma-detention-center-its-still-inhumane/ [https://perma.cc/53Y7-SVGC].

[3]. See Alex Altman, Prison Hunger Strike Puts Spotlight on Immigration Detention, TIME (Mar. 17, 2014), https://time.com/27663/prison-hunger-strike-spotlights-on-immigration-detention/ [https://perma.cc/PQ5W-2NCW]; Hunger Strikers Handbook, supra note 1, at 16.

       [4]. After 56 Days, Northwest Detention Center Hunger Strike Concludes, Not1More (May 5, 2014), https://web.archive.org/web/20190715221547/http://www.notonemoredeportation.com/2014/05/05/after-56-days-northwest-detention-center-hunger-strike-concludes-newly-formed-collective-of-detainees-releases-statement/ [https://perma.cc/G3P3-C4M2] (sourced via Internet Archive).

       [5]. Angélica Cházaro & Dan Berger, Guest: What’s Behind the Hunger Strike at Northwest Detention Center, Seattle Times (Mar. 19, 2014), https://www.seattletimes.com/opinion/guest-whatrsquos-behind-the-hunger-strike-at-northwest-detention-center/ [https://perma.cc/WT39-R4VM]; see also Hunger Strikers Handbook, supra note 1, at 19.

       [6]. NWDC is adjacent to the Tacoma Tideflats, “where a coal gasification plant leeched toxic sludge into the soil for more than thirty years.” David Pellow & Jasmine Vazin, The Intersection of Race, Immigration Status, and Environmental Justice, 11 Sustainability 1, 10 (2019); see also Rico Moore, In Toxic Detention, Nation (May 15, 2025), https://www.thenation.com/article/environment/margin-tacoma-toxic-detention/ [https://perma.cc/7QZF-TE3H] (providing maps showing the sources of contamination in the area by the detention center).

[7]. About the Northwest Detention Center, Nw. Immigrant Rts. Project (2021), https://www.nwirp.org/resources/nwdc/ [https://perma.cc/PZ5K-EXN3].

       [8]. Lewis Kamb, A Rare Look Inside Tacoma’s Northwest Detention Center, News Trib. (Jan. 31, 2017), https://www.thenewstribune.com/news/special-reports/article25860412.html [https://perma.cc/H76B-SA2J] (“[T]he Tacoma City Council . . . anticipated the new facility ‘would bring hundreds of family-wage job opportunities’ . . . . As it turned out, only about 45 jobs initially were created.”).

       [9]. The company that secured the original contract for the detention center was the Correctional Services Corporation (CSC). See Contract Between Corr. Servs. Corp. and Immigr. and Customs Enf’t (2002), https://www.documentcloud.org/documents/2631226-Northwest-Detention-Center-CDF-Contract-2002 [https://perma.cc/8M4Y-SE2L]. GEO purchased CSC and took over the facility and its contract with ICE in 2005. GEO Group Buys Out Correctional Services Corporation, Prison Legal News (Jan. 15, 2006), https://www.prisonlegalnews.org/news/2006/jan/15/geo-group-buys-out-correctional-services-corporation/ [https://perma.cc/E9PH-SKE4]; The GEO Group, Annual Report (Form 10-K), at 8 (Mar. 2, 2007), https://www.sec.gov/Archives/edgar/data/923796/000095014407001829/g05716e10vk.htm [https://perma.cc/4E34-GU4R].

     [10]. Complaint ¶ 4.4, Nwauzor v. GEO Grp., Inc., No. 17-cv-05769-RJB, 2017 WL 11646687 (W.D. Wash. Sep. 26, 2017) (“Rather than hire from the local workforce, GEO relies upon captive detainee workers to clean, maintain, and operate NWDC.”).

[11].Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 758 (9th Cir. 2025).

     [12]. Complaint ¶¶ 4.5, 4.7, Nwauzor, 2017 WL 11646687.

     [13]. Martin Kaste, Detainees Who Earned Just $1 a Day Are Owed $17 Million in Back Pay, a Jury Says, NPR (Oct. 29, 2021), https://www.npr.org/2021/10/29/1050520220/detainees-who-earned-just-1-a-day-are-owed-17-million-in-back-pay-a-jury-orders [https://perma.cc/WZ3T-E4FS].

[14]. See Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 973 (W.D. Wash. 2017).

     [15]. This Note will generally use the term “detained workers” to refer to all those detained who labor in immigration detention in any capacity. While imperfect, this term highlights that those laboring are workers who merit protections, in spite or arguably because of their involuntary residence.

[16].Chen v. GEO Grp., Inc., 287 F. Supp. 3d 1158, 1161 (W.D. Wash. 2017). The lead named plaintiff in this class action, Chao Chen, was later replaced by Ugochukwu Goodluck Nwauzor, and the case name changed accordingly. See Nwauzor v. GEO Grp., Inc., No. 17-cv-05769-RJB, 2021 WL 5824384 (W.D. Wash. Dec. 8, 2021).

     [17]. Verdict and Settlement Summary, Nwauzor, 2021 WL 9374966; Verdict, Agreement and Settlement, Washington v. GEO Grp., Inc., No. 17-cv-05769-RJB, 2021 WL 5571111 (W.D. Wash. Oct. 27, 2021).

[18].Nwauzor v. GEO Grp., Inc., 540 P.3d 93, 93–94 (Wash. 2023); Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 756 (9th Cir. 2025).

[19].Nwauzor v. GEO Grp., Inc., 146 F.4th 1280, 1281 (9th Cir. 2025).

     [20]. Petition for Writ of Certiorari, GEO Grp., Inc., v. Nwauzor, No. 25A464 (U.S. Jan. 9, 2026). The Supreme Court recently ruled unanimously against GEO in a similar case by detained workers. Geo Grp., Inc. v. Menocal, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026).

     [21]. Gene Johnson, GEO Group Halts Work Program at Tacoma Jail Instead of Upping Detainee Pay, KNKX Pub. Radio (Nov. 5, 2021), https://www.knkx.org/law/2021-11-05/geo-group-halts-work-program-at-tacoma-jail-instead-of-upping-detainee-pay [https://perma.cc/8ET9-DFMN].

     [22]. Brief of La Resistencia, Fair Work Center & Prof. Angelina Snodgrass Godoy as Amici Curiae in Support of Appellee at 11, 16, 25, Nwauzor v. GEO Grp., Inc.,Nos. 21-36024 & 21-36025 (9th Cir. May 27, 2022).

[23]. Id. at 15–21 (detailing worsening conditions after ending the work program at NWDC, including dirty floors and bathrooms, insufficient food service, and even increased commissary prices).

[24]. See Dep’t of Lab. & Indus. v. GEO Secure Servs., LLC, No. C24-5095-BHS, 2024 WL 3250426, at *12 (W.D. Wash. July 1, 2024); Bill Lucia, State Workplace Inspectors Will Have Access to Immigration Detention Center in Tacoma, Wash. State Standard (Oct. 2, 2024), https://washingtonstatestandard.com/2024/10/02/state-workplace-inspectors-will-have-access-to-immigration-detention-center-in-tacoma/ [https://perma.cc/ND9S-JSSU].

[25]. Seeinfra Part I.B.

[26]. See Jacqueline Stevens, One Dollar Per Day: The Slaving Wages of Immigration Jail, From 1943 to Present, 29 Geo. Immigr. L.J. 391, 402 (2015); see alsoinfra Part I.B (describing the for-profit immigration detention model); infra note 290 and accompanying text(countering claims that private detention centers would benefit economically from paying full labor costs).

[27]. See infra notes 135–37 and accompanying text.

     [28]. For further discussion on the role of litigation and non-litigation avenues in remedying violations of detained workers’ rights, see infra Part I.E.

[29]. See e.g., Owino v. CoreCivic, Inc., 60 F.4th 437, 450 (9th Cir. 2022); Barrientos v. CoreCivic, Inc., 951 F.3d 1269, 1280 (11th Cir. 2020); Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151, 1199 (D. Colo. 2022), appeal dismissed, No. 22-1409, 2024 WL 4544184, at 4 (10th Cir. Oct. 22, 2024), aff’d, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026); Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626, at 27 (C.D. Cal. Jan. 25, 2022).

[30]. See Nwauzor v. GEO Grp., Inc., 127 F.4th 750 (9th Cir. 2025); Menocal v. GEO Grp., Inc., No. 22-1409, 2024 WL 4544184 (10th Cir. Oct. 22, 2024), aff’d, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026).

     [31]. U.S. Immigr. & Customs Enf’t, Annual Report 22 (2024), https://www.ice.gov/doclib/eoy/iceAnnualReportFY2024.pdf [https://perma.cc/UC88-WLLK].

     [32]. Zoom Interview with Jose Ruben Hernandez Gomez (Mar. 20, 2024).

[33]. United States, Glob. Det. Project, https://www.globaldetentionproject.org/countries/americas/united-states [https://perma.cc/UPJ5-A4P2].

     [34]. U.S. Immigr. & Customs Enf’t, supra note 31, at 23; see alsoICE Enforcement and Removal Operation Statistics, U.S. Immigr. & Customs Enf’t, https://www.ice.gov/statistics [https://perma.cc/TN7L-W55R].

     [35]. Suzanne Gamboa, Julia Ainsley, Gabe Gutierrez & Laura Strickler, Trump’s Stepped-Up Immigration Arrests Escalate Need for More Detention Space, NBC News (Jan. 31, 2025), https://www.nbcnews.com/news/latino/trumps-stepped-immigration-arrests-escalate-need-detention-space-rcna190217 [https://perma.cc/Q7BN-5LC2].

[36]. See Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison 2 (2009); My Khanh Ngo & Judy Rabinovitz, Asylum Seeker’s Wrongful 6-Year Detention is Emblematic of a Broken System, ACLU (Oct. 10, 2023), https://www.aclu.org/news/immigrants-rights/asylum-seekers-wrongful-6-year-detention-is-emblematic-of-a-broken-system [https://perma.cc/CU7M-CNPK].

[37]. See Immigr. Pol’y Ctr., Am. Immigr. Council, The Ones They Leave Behind: Deportation of Lawful Permanent Residents Harms U.S. Citizen Children 1 (2010), https://www.americanimmigrationcouncil.org/wp-content/uploads/2025/01/Childs_Best_Interest_Fact_Sheet_042610.pdf [https://perma.cc/9SBM-WSTS] (noting that 10 percent of all people deported each year are legal permanent residents).

[38]. See U.S. Gov’t Accountability Off., GAO-21-487, Immigration Enforcement: Actions Needed to Better Track Cases Involving U.S. Citizenship Investigations 21–24 (2021), https://www.gao.gov/assets/gao-21-487.pdf (finding that since 2015, ICE has arrested 674, detained 121, and deported 70 potential U.S. citizens).

     [39]. U.S. Immigr. & Customs Enf’t, supra note 31, at 22.

[40]. See Juliet P. Stumpf, Civil Detention and Other Oxymorons, 40 Queen’s L.J. 55, 63–65 (2014) (citing The Chinese Exclusion Case, 130 U.S. 58, 582 (1889); Korematsu v. United States, 323 U.S. 214, 216 (1944)).

[41]. See Anita Sinha, Slavery by Another Name: Voluntary Immigrant Detainee Labor and the Thirteenth Amendment, 11 Stan. J. C.R. & C.L. 1, 8 (2015) (quoting William D. Owen, Report Of The Select Committee On Immigration And Naturalization, H.R. Rep. No. 51-3472, at II–III (1891)); see also César Cuauhtémoc García Hernández, The Perverse Logic of Immigration Detention: Unraveling the Rationality of Imprisoning Immigrants Based on Markers of Race and Class Otherness, 1 Colum. J. Race & L. 353, 357–58 (2012).

     [42]. Emily Kassie, Detained: How the U.S. Created the Largest Immigrant Detention System in the World, Marshall Project (Sep. 24, 2019), https://www.themarshallproject.org/2019/09/24/detained [https://perma.cc/X8DW-EP9L].

[43]. See Sinha, supra note 41, at 13–16.

[44]. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (requiring mandatory detention of asylum-seekers pending a final determination of credible fear of persecution).

     [45]. Id. § 1225(b)(1)(C); see also Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104–208, 110 Stat. 3009 (1996).

[46]. See Sinha, supra note 41, at 14–16.

     [47]. Laken Riley Act, Pub. L. No. 119-1, 139 Stat. 3 (2025).

     [48]. García Hernández, supra note 41, at 360.

[49]. See Stumpf, supra note 40, at 58 (“[M]ass immigration detention grew up in the same time and space as mass incarceration, shar[es] the same facilities and actors to achieve a nearly identical restraint on liberty.”).

     [50]. Sinha, supra note 41, at 20.

[51]. See Immigration and Nationality Act § 287(g), 8 U.S.C. § 1357(g); Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, Immigr. & Customs Enf’t (2025), https://www.ice.gov/identify-and-arrest/287g [https://perma.cc/XF56-JWLC]; ImmigrationDetainers: An Overview, Am. Immigr. Council (Mar. 21, 2017), https://www.americanimmigrationcouncil.org/research/immigration-detainers-overview [https://perma.cc/C5ED-53UA]; Arrest to Deportation Pipeline, Cal. Immigr. Pol’y Ctr., https://caimmigrant.org/what-we-do/policy/arrest-to-deportation-pipeline/ [https://perma.cc/HXN6-MHFM].

     [52]. Jennifer Safstrom, Thirteenth Amendment Litigation in the Immigration Detention Context, 26 Mich. J. Race & L. 205, 216 (2020).

     [53]. Seth H. Garfinkel, The Voluntary Work Program: Expanding Labor Laws to Protect Detained Immigrant Workers, 67 Case W. Rsrv. L. Rev. 1287, 1312 (2017); see alsoinfra Part II.A (discussing the similarities and differences between civil immigration detention and criminal incarceration).

     [54]. Some immigration offenses, such as unlawful re-entry, are criminal offenses with criminal penalties. See 8 U.S.C. §§ 1325(a), 1326. But presence in the United States in violation of immigration laws, such as overstaying a visa, is a civil rather than criminal offense. See 8 U.S.C. § 1227; Safstrom, supra note 52, at 216.

[55]. See Fong Yue Ting v. United States, 149 U.S. 698, 730–31 (1893).

     [56]. See Wong Wing v. United States, 163 U.S. 228, 235 (1896); U.S. Immigr. & Customs Enf’t, Performance-Based National Detention Standards 2011, at i (2016) [hereinafter PBNDS], https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf [https://perma.cc/LM2W-XFE2] (“ICE detains people for no purpose other than to secure their presence both for immigration proceedings and their removal . . . .”).

[57]. See Fong Yue Ting, 149 U.S. at 730–31 (reasoning that because deportation is “not a punishment for a crime,” it does not constitute a deprivation “of life, liberty, or property without due process of law” that would entitle the procedural protections of the criminal justice system); Sinha, supra note 41, at 5, 8, 11; Garfinkel, supra note 53, at 1312 n.158 (detailing the various procedural protections available in the criminal justice system but not in the immigration context including Miranda warnings, appointed counsel, right to a bail hearing, right to a speedy trial, prohibition of illegally obtained evidence, and right to trial before jury).

[58]. See ACLU & Physicians for Hum. Rts., Behind Closed Doors: Abuse and Retaliation Against Hunger Strikers in U.S. Immigration Detention (2021), https://www.aclu.org/report/report-behind-closed-doors-abuse-retaliation-against-hunger-strikers-us-immigration-detention [https://perma.cc/5SA6-S6TD]. Plaintiffs in Menocal v. GEO Group and Hernandez Gomez v. GEO Group were deported, disrupting proceedings against GEO. See e.g.,Writ of Habeas Corpus Ad Testificandum, Menocal v. GEO Grp., Inc., No. 1:14-cv-02887-JLK-MEH (D. Colo. June 11, 2020). In Alvarado Guevara v. INS, two named plaintiffs were summoned back to the United States for depositions after being deported. See Plaintiff’s Proposed Order to Show Cause for Preliminary and Permanent Injunction, No. B-86-106 (S.D. Tex. Mar. 16, 1987). After their depositions, Border Patrol agents detained them at the airport and allegedly assaulted them. Id. In Hernandez Gomez v. GEO, one of the named plaintiffs alleged sexually invasive pat downs and permanently disabling refeeding tactics after hunger striking against labor conditions. Justo Robles, Californian Who Joined Hunger Strike in ICE Detention Seeks $1 Million in Complaint, CalMatters (Dec. 22, 2023), https://calmatters.org/california-divide/2023/12/ice-detention-california/ [https://perma.cc/X75G-73R2].

     [59]. For example, the Trafficking Victims Protection Act (TVPA) is both a criminal statute and a trafficking statute. Successful TVPA claims theoretically open up the possibility of pursuing U visas (available for victims of crime) or T visas (available for victims of trafficking) on behalf of at least named plaintiffs and potentially unnamed class members. Recently, one of the named plaintiffs in a TVPA class action in Colorado obtained certification for a U visa. See Emergency Motion for U Visa Certification,Menocal v. GEO Grp., Inc., No. 1:14-cv-2887-JLK-CYC (D. Colo. Sep. 15, 2025). But most federal or state subminimum wage claims would not provide any immigration relief as these labor violations generally do not relate to trafficking or criminal liability. Seeinfra Parts II.B, III.A.

     [60]. For example, in Hernandez Gomez v. GEO Group, lead counsel Rosen Bien Galvan and Grunfeld bring expertise suing prisons and litigating workers’ rights. Their co-counsel, the California Collaborative for Immigrant Justice, brings expertise from serving residents in immigration detention through direct legal services and advocacy. See Second Amended Complaint, Hernandez Gomez v. GEO Grp., Inc., No. 1:22 Civ. 00868-ADA-CDB, 2022 WL 19266228 (E.D. Cal. Dec. 23, 2022).

     [61]. Wesley Carrasco & Megan Ybarra, Unjust Enrichment: The Struggle for Fair Wages and an End to All Immigrant Cages, ISSU (June 20, 2021), https://web.archive.org/web/20240814052024if_/https:/issuu.com/muybarra/docs/unjust_enrichment_updated_14jun2021 [https://perma.cc/5S7H-E8FC].

[62]. See Eunice Cho, Unchecked Growth: Private Prison Corporations and Immigration Detention, Three Years Into the Biden Administration, ACLU (Aug. 7, 2023), https://www.aclu.org/news/immigrants-rights/unchecked-growth-private-prison-corporations-and-immigration-detention-three-years-into-the-biden-administration [https://perma.cc/BW37-V7CH].

     [63]. Jonathon Booth, Ending Forced Labor In ICE Detention Centers: A New Approach, 34 Geo. Immigr. L.J. 573, 579 (2020). GEO and CoreCivic are not the only private detention center operators, and similar labor lawsuits are pending against these smaller companies as well. See Yeend v. Akima Glob. Servs., LLC, 347 F.R.D. 405 (N.D.N.Y. 2024); Barahona v. LaSalle Mgmt. Co., LLC, No. 7:23-CV-24-WLS, 2025 WL 961437 (M.D. Ga. Mar. 31, 2025).

     [64]. Cho, supra note 62.

[65]. Id.

[66]. See Emily Stewart, Trump’s Secret Weapon on Immigration, Bus. Insider (Feb. 3, 2025), https://www.businessinsider.com/private-prisons-profit-trump-executive-order-immigration-deportation-geo-corecivic-2025-2 [https://perma.cc/Z72A-YVTY]; Lauren-Brooke Eisen, Private Prison Companies’ Enormous Windfall: Who Stands to Gain as ICE Expands, Just Sec. (Sep. 24, 2025), https://www.justsecurity.org/121226/private-prison-companies-gain-ice-expands/ [https://perma.cc/74N7-BKXV].

[67].Stewart, supra note 66.

     [68]. Booth, supra note 63, at 580.

[69]. Id.

[70]. Id.

     [71]. The GEO Group, Annual Report (Form 10-K), at 70 (Feb. 29, 2024), https://investors.geogroup.com/static-files/b6d0f4ba-9763-408a-a707-7cb552b65b80 [https://perma.cc/A9NC-MRGJ].

     [72]. CoreCivic, Annual Report (Form 10-K), at 74 (Feb. 20, 2024), https://ir.corecivic.com/static-files/94995c0f-831c-40e6-858c-298a6a570bc6 [https://perma.cc/L9MM-JBEW].

     [73]. Stevens, supra note 26, at 402.

     [74]. Zoom Interview with Jose Ruben Hernandez Gomez (Mar. 20, 2024).

     [75]. Declaration of Demetrio A. Valerga ¶ 4, Menocal v. GEO Grp., Inc., No. 1:14-cv-02887-JLK-CYC (D. Colo. May 6, 2016).

[76]. Id.

     [77]. After conducting extensive Freedom of Information Act litigation, Professor Stevens estimated that detention centers generally pay detained workers one to three dollars per day. Stevens, supra note 26, at 415–17.

     [78]. Amended Complaint for Declaratory and Injunctive Relief and Damages ¶ 9, Barrientos v. CoreCivic, Inc., No. 4:18-cv-00070-CDL, 2020 WL 7021904 (M.D. Ga. Apr. 17, 2018).

[79]. See 29 U.S.C. § 206(a)(1)(C).

     [80]. Camille Pendley, Immigrants Seeking Asylum Face Long Odds in Stewart County Detention Center, Creative Loafing (Nov. 2, 2016), https://creativeloafing.com/content-267459-immigrants-seeking-asylum-face-long-odds-in-stewart-county-detention [https://perma.cc/GQU2-WYMY].

     [81]. Detention Standards, U.S. Immigr. & Customs Enf’t, https://www.ice.gov/detain/detention-management [https://perma.cc/4TRT-X6WU].

     [82]. PBNDS, supra note 56, at 405–09.

[83]. Id. at 405.

[84]. Id.

[85]. Id. at 407.

[86]. Id.

     [87]. Stevens, supra note 26, at 409.

     [88]. See An Act to Authorize Certain Administrative Expense for the Department of Justice, and Other Purposes, Pub. L. No. 81-503, § 6, 64 Stat. 380 (1950).

     [89]. 8 U.S.C. § 1555(d).

[90]. See Department of Justice Appropriation Act of 1978, Pub L. No. 95-86, 91 Stat. 419; An Act to Authorize Certain Administrative Expenses for the Department of Justice and for Other Purposes, Pub L. No. 81-626, 64 Stat. 380 (1950) (codified at Pub. L. No. 89-554, 80 Stat. 378, 656 (1966)).

[91]. Consumer Price Index Inflation Calculator, U.S. Bureau of Lab. Stat., https://data.bls.gov/cgi-bin/cpicalc.pl?cost1=1.00&year1=195001&year2=202506 [https://perma.cc/R8UB-YMXG] (based on September 2025 data).

[92]. See Department of Justice Appropriation Act of 1978, Pub L. No. 95–86, 91 Stat. 426 (final year where dollar-per-day program is included in the appropriations bill);Stevens, supra note 26, at 465–66.

[93]. See U.S. Dep’t of Homeland Sec., Off. of Inspector Gen., OIG-18-32, Concerns about ICE Detainee Treatment and Care at Detention Facilities 8 (2019) [hereinafter DHS OIG Report], https://www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47-Jun19.pdf [https://perma.cc/Q5QY-9X2X] (reporting on potentially unsafe food at four different facilities, including “spoiled, wilted, and moldy produce . . . as well as food past its expiration date”); see also Cal. Collaborative for Immigr. Just., Starving for Justice: the Denial of proper nutrition in Immigration Detention 5–10 (2022), https://www.ccijustice.org/_files/ugd/733055_c43b1cbbdda341b894045940622a6dc3.pdf [https://perma.cc/GZG4-KL6N]; Univ. of Wash., Ctr. for Hum. Rts., Conditions at NWDC: Sanitation of Food & Laundry (2020), https://jsis.washington.edu/humanrights/2020/03/27/nwdc-sanitation-of-food-laundry/ [https://perma.cc/LA8B-XQD8].

[94]. See Jack Herrera, In ICE Detention, Forced to Pay for Soap, Nation (Apr. 30, 2020), https://www.thenation.com/article/politics/coronavirus-ice-detention-soap/ [https://perma.cc/R7DL-EVDR]; DHS OIG Report, supra note 93, at 7 (reporting on the lack of basic hygiene supplies such as toilet paper, shampoo, soap, lotion, and toothpaste in at least two detention centers).

[95]. See Shannon Najmabadi, Detained Migrant Parents Have to Pay to Call Their Family Members. Some Can’t Afford To, Texas Trib. (July 3, 2018), https://www.texastribune.org/2018/07/03/separated-migrant-families-charged-phone-calls-ice/ [https://perma.cc/RJ3C-W8J3]; Alexandra Starr, At Low Pay, Government Hires Immigrants Held At Detention Centers, NPR (July 23, 2015), https://www.npr.org/2015/07/23/425511981/at-low-pay-government-hires-immigrants-held-at-detention-centers [https://perma.cc/MTF9-MW4H] (quoting Professor Nancy Hiemestra, remarking that “[s]ome people will work for two weeks just to make one phone call”).

     [96]. Michelle Conlin & Kristina Cooke, $11 Toothpaste: Immigrants Pay Big for Basics at Private ICE Lock-Ups, Reuters (Jan. 18, 2019), https://www.reuters.com/article/idUSKCN1PC0DJ/ [https://perma.cc/ATV3-Y9KU].

     [97]. Second Amended Complaint ¶ 89, Hernandez Gomez v. GEO Grp., Inc., No. 1:22 Civ. 00868-ADA-CDB, 2022 WL 19266228 (E.D. Cal. Dec. 23, 2022).

     [98]. Complaint for Declaratory and Injunctive Relief and Damages ¶¶ 1–2, Barrientos v. CoreCivic, Inc., No. 4:18-cv-00070-CDL, 2020 WL 7021904 (M.D. Ga. Apr. 17, 2018); see also Second Amended Complaint ¶ 89, Hernandez Gomez, 2022 WL 19266228; Samantha Sherman, Defining Forced Labor: The Legal Battle to Protect Detained Immigrants from Private Exploitation, 88 U. Chi. L. Rev. 1201, 1214 (2021); Jamila S. Cambridge, Land of the Free? An Examination of the Constitutionality of Forced Labor in U.S. Immigrant Detention Centers, 63 How. L.J. 405, 410 (2020).

[99]. See Stevens, supra note 26, at 416–17.

[100]. See, e.g.,Third Amended Complaint ¶¶ 139–40, Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2019 WL 8329599 (C.D. Cal. Sep. 16, 2019) (alleging some detainees worked without pay for months before being hired into the work program); see also Mia Steinle, Slave Labor Widespread at ICE Detention Centers, Lawyers Say, Project on Gov’t Oversight (Sep. 7, 2017), https://www.pogo.org/investigations/slave-labor-widespread-at-ice-detention-centers-lawyers-say [https://perma.cc/PT7A-NNAK] (reporting on waitlists for job placements at NWDC).

[101]. See Yana Kunichoff, “Voluntary” Work Program in Private Detention Centers Pays Detained Immigrants $1 a Day, Prison Legal News (Aug. 15, 2012), https://www.prisonlegalnews.org/news/2012/aug/15/voluntary-work-program-in-private-detention-centers-pays-detained-immigrants-1-a-day/ [https://perma.cc/M7VV-LQPN]; Sherman, supra note 98, at 1210–11; Sinha, supra note 41, at 33.

[102]. See Steinle, supra note 100 (“They [GEO] make you feel like you are the one requesting the job.”).

   [103]. U.S. Const. amends. VI–VII.

[104]. See Sinha, supra note 41, at 4–5 (noting that the timing in “immigration detention is inherently indeterminate” (citations omitted)).

[105]. See Christie Thompson & Andrew Rodriguez Calderón, More Immigrants Are Giving Up Court Fights and Leaving the U.S., Marshall Project (May 8, 2019), https://www.themarshallproject.org/2019/05/08/more-detained-immigrants-are-giving-up-court-fights-and-leaving-the-u-s [https://perma.cc/GM7H-ESZL] (“‘Voluntary departure’ applications surge as immigrants decide it’s better to return to their native countries than languish in a detention facility.”).

   [106]. Interview with Maru Mora Villalpando (Apr. 8, 2024).

[107]. See Brief for the United States as Amicus Curiae in Support of Neither Party, Barrientos v. CoreCivic, Inc., 951 F.3d 1269 (11th Cir. 2020) (No. 18-15081).

[108]. See, e.g.,Todd Schulte, Tearing Families Apart: The Impact of Trump’s Immigration Agenda, FWD.us (Sep. 29, 2020), https://www.fwd.us/news/the-impact-of-trumps-immigration-agenda/ [https://perma.cc/7QQX-BQ6F]; A Timeline of The Trump Administration’s Efforts to End Asylum, Nat’l Immigr. Just. Ctr., https://immigrantjustice.org/timeline-trump-administrations-efforts-end-asylum [https://perma.cc/QQT8-7LTN].

[109]. See Brief for the United States as Amicus Curiae in Support of Appellant, Washington v. GEO Grp., Inc., 127 F.4th 783 (9th Cir. 2025) (Nos. 21-36024, 21-36025).

[110]. See, e.g., Alvarado Guevara v. INS, 902 F.2d 394 (5th Cir. 1990); see also Channer v. Hall, 112 F.3d 214 (5th Cir. 1997).

[111]. See generally Erwin Chemerinsky, Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable 20–92 (2017).

[112]. SeeAlvarado Guevara, 902 F.2d at 396 n.2 (“Further evidence that alien detainees are not government ‘employees’ lie in critical features of government employment.”). But see Brief for Hearing En Banc at 8–10, Alvarado Guevara, 902 F.2d 394 (“Even if Defendants were forbidden to employ aliens, the Defendants must pay the minimum wage if they nevertheless do, in fact, employ aliens.”).

[113]. See, e.g.,Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151, 1181 (D. Colo. 2022) (“ICE is aware of the claims in this case and has not affirmatively asserted any interest.”), appeal dismissed, No. 22-1409, 2024 WL 4544184, at 4 (10th Cir. Oct. 22, 2024), aff’d, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026); Chen v. GEO Grp. Inc., No. 3:17-CV-05769-RJB, 2018 WL 1963669, at 3 (W.D. Wash. Apr. 26, 2018); Washington v. GEO Grp. Inc., No. 3:17-CV-05806-RJB, 2018 WL 1963792, at *3 (W.D. Wash. Apr. 26, 2018)(finding that ICE is aware of the pending litigation but has not appeared in any similar case or asserted any interest). But see Statement of Interest of the United States, Washington v. GEO Grp., Inc., No. 3:17-cv-05806-RJB (W.D. Wash. Aug. 20, 2019) (claiming that the lawsuit by the state of Washington interferes with federal immigration enforcement).

[114]. See U.S. Const. art. VI, cl. 2.

[115]. See generally Kate Sablosky Elengold & Jonathan D. Glater, The Sovereign Shield, 73 Stan. L. Rev. 969 (2021); David S. Rubenstein & Pratheepan Gulasekaram, Privatized Detention & Immigration Federalism, 71 Stan. L. Rev. Online 224 (2019).

   [116]. For example, California’s Occupational Safety and Health Administration (OSHA) fined GEO for violating workplace safety measures for detained workers, thereby defining them as employees protected by the agency. OSHA, Inspection Detail – The Geo Group, Inc. Dba Golden State Annex (Report ID: 0950647), (2022), https://www.osha.gov/ords/imis/establishment.inspection_detail?id=1609228.015 [https://perma.cc/FQ6V-G9VU].

[117]. See, e.g., GEO’s Notice of Removal to Federal Court, Washington v. GEO Grp., Inc., No. 3:17-cv-05806, 2017 WL 11646686 (W.D. Wash. Aug. 14, 2017). For further discussion, see infra Part III.

[118]. See Lydia Saad, Americans Showing Increased Concern About Immigration, Gallup (Feb. 13, 2023), https://news.gallup.com/poll/470426/americans-showing-increased-concern-immigration.aspx [https://perma.cc/9P5R-ZAGM]; Fidel Martinez, Is America Turning Anti-Immigrant?, L.A. Times (Jan. 17, 2024), https://www.latimes.com/delos/newsletter/2024-01-17/migrants-drowning-texas-greg-abbott-immigration-operation-lone-star-latinx-files-latinx-files [https://perma.cc/26EE-84AA].

   [119]. See infra note 140 and accompanying text.

   [120]. For example, the Washington Attorney General brought suit against GEO after years of organizing and political pressure. See Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967 (W.D. Wash. 2017).

[121]. Seeinfra note 139 and accompanying text.

   [122]. Third Amended Complaint ¶ 96, Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2019 WL 8329599 (C.D. Cal. Sep. 16, 2019).

[123]. Id. ¶ 97.

[124]. Id. ¶ 98.

[125]. Id. ¶ 109.

[126]. Id. ¶ 108.

[127]. Id. ¶ 11.

   [128]. See Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2019 WL 7195331, at 20 (C.D. Cal. Nov. 26, 2019). But see Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2021 WL 4913286, at 7 (C.D. Cal. Sep. 30, 2021) (dismissing GEO’s motion to decertify the facility-specific class but decertifying the nationwide class). Deeper analysis of the obstacles and opportunities for class certification is largely outside of the scope of this Note but merits further study.

   [129]. Booth, supra note 63, at 606.

   [130]. Betsy Swan, Private Prison Bosses Beg Taxpayers to Pay Human-Trafficking Lawsuit Bills, Daily Beast (July 17, 2019), https://www.thedailybeast.com/private-prison-bosses-beg-taxpayers-to-pay-human-trafficking-lawsuit-bills [https://perma.cc/JXJ5-8877].

[131]. Id.

[132]. See Stevens, supra note 26, at 402.

[133]. See generally Steven P. Croley, Civil Justice Reconsidered: Toward a Less Costly, More Accessible Litigation System (2017); Yotam Kaplan & Ittai Paldor, Social Justice and the Structure of the Litigation System, 101 N.C. L. Rev. 469 (2023).

   [134]. For a recent creative, contract-based solution to addressing violations of detainees’ labor rights in private immigration facilities, seeJames Sabia, Protecting Non-Citizens in Private Detention Facilities from Reprisal for Exercising Their Labor Rights: A Two-Step Procurement-Based, Pre-Award Solution, 53 Pub. Cont. L.J. 855 (2024).

   [135]. Since the facility-wide hunger strike at the Northwest Detention Center, detainees at facilities across the country have protested conditions, including work conditions. Freedom for Immigrants documented at least 1,600 detainees on hunger strike across twenty detention facilities between May 2015 and early 2020. SeeHunger Strikes, Freedom for Immigrants, https://www.freedomforimmigrants.org/hunger-strikes [https://perma.cc/9GSM-RVKA]. For an overview of various creative forms of resistance that “occur both within and beyond the walls of confinement,” see Savannah Kumar, Compelling Labor and Chilling Dissent: Creative Resistance to Coercive Uses of Solitary Confinement in Prisons and Immigration Detention Centers, 36 Harv. Blackletter L.J. 93, 112–16 (2020).

[136]. See, e.g., OSHA, supra note 116 (fining GEO for violating COVID-19 workplace safety regulations as applied to detained workers); National Labor Relations Board Files Complaint Against GEO Group for Retaliation Against Workers at Mesa Verde Detention Facility, Cal. Collaborative for Immigr. Just. (CCIJ) (Jan. 14, 2025), https://www.ccijustice.org/post/nlrb-complaint-against-geo [https://perma.cc/6X9W-KB64].

[137]. See Justice is Not for Sale Act, S. 2054, 114th Cong. (2015) (introducing a federal bill to end private immigration detention). State legislatures in New Jersey, Oregon, Illinois, Maryland, California, and Washington successfully passed legislation to end or limit immigration detention or private immigration detention. See N.J. Rev. Stat. §§ 30:4–8.15-16; Or. Rev. Stat. Ann. § 181A.829; 5 Ill. Comp. Stat. 805/15(g)(1); Md. Code Ann. Corr. Servs. § 1-102; Cal. Penal Code § 9501; Wash. Rev. Code Ann. § 70.395.030. But seeinfra note 140 and accompanying text. States like California and Washington have also passed laws empowering state agencies to regulate and investigate conditions of immigration detention. See Wash. Rev. Code Ann. § 70.395.040; Cal. Gov’t Code § 12532. But seeinfra note 140 and accompanying text.

[138]. See ACLU & Physicians for Hum. Rts., Behind Closed Doors: Abuse and Retaliation Against Hunger Strikers in U.S. Immigration Detention (2021), https://www.aclu.org/report/report-behind-closed-doors-abuse-retaliation-against-hunger-strikers-us-immigration-detention [https://perma.cc/5SA6-S6TD] (reporting on retaliation measures in response to hunger strikes, including force-feeding, solitary confinement, and retaliatory transfers); Robles, supra note 58 (reporting on retaliation against one of the lead detained worker organizers).

   [139]. The Cal/OSHA finding, imposing a $100,000 fine on the multibillion-dollar corporation for COVID-19-related violations from 2022, remains on appeal three years later. See OSHA, supra note 116. It took three years from the original filing until the National Labor Relations Board (NLRB) issued their official complaint. See Order Consolidating Cases, Consolidated Complaint, and Notice of Hearing, GEO Grp., Inc., Nos. 31-CA-309785, 31-CA-313988, 31-CA-322777 (NLRB Jan. 6, 2025). Months later, the newly inaugurated Trump administration dropped the case. Josh Eidelson, Trump NLRB Drops Case Over GEO Group Treatment of Detainees, Bloomberg News (Mar. 19, 2025), https://news.bloomberglaw.com/us-law-week/trump-nlrb-drops-case-over-geo-group-treatment-of-detainees [https://perma.cc/ZWD5-6VL7]. Courts have also struck down laws authorizing administrative actions against private immigration detention centers. See, e.g., United States v. California, 921 F.3d 865, 895 (9th Cir. 2019) (finding California’s law regulating immigration detention conditions unconstitutional).

   [140]. Both GEO and CoreCivic spend millions of dollars annually in political contributions and lobbying. See Thomas Ferraro, Raising a $1-a-Day Wage Seems Like a No-Brainer. Not to Congress, In These Times (July 21, 2022), https://inthesetimes.com/article/dollar-a-day-wages-immigration-detention-geo-corecivic-congress [https://perma.cc/WLP7-5UGB]; CoreCivic, Inc., OpenSecrets, https://www.opensecrets.org/orgs/corecivic-inc/summary?id=D000021940 [https://perma.cc/TU7U-3MB9]); see also Garfinkel, supra note 53, at 1303–05; Booth, supra note 63, at 585–87. Where states effectively passed legislation limiting immigration detention, GEO and CoreCivic have successfully challenged their constitutionality in court. See, e.g.,GEO Grp., Inc. v. Newsom, 50 F.4th 745, 763 (9th Cir. 2022) (finding California’s bill unconstitutional); GEO Grp., Inc. v. Inslee, 702 F. Supp. 3d 1043, 1051 (W.D. Wash. 2023) (finding Washington’s bill unenforceable); CoreCivic, Inc. v. Murphy, 690 F. Supp. 3d 467, 493 (D.N.J. 2023), aff’d sub nom.,CoreCivic, Inc. v. Governor of N.J., 145 F.4th 315 (3d Cir. 2025) (finding New Jersey’s bill unconstitutional). But see McHenry County v. Raoul, 44 F.4th 581, 594 (7th Cir. 2022) (upholding the constitutionality of Illinois’s bill).

   [141]. “For us—it’s not about winning a case. It’s just one of the many tools that we use. None of them by themselves are the solution.” Interview with Maru Mora Villalpando (Apr. 8, 2024).

[142]. See Barrientos v. CoreCivic, Inc., No. 4:18-cv-00070-CDL (M.D. Ga. Aug. 28, 2023) (ECF No. 342).

[143]. See infra Part II.A.

[144]. See infra Part III.

   [145]. 8 U.S.C. § 1324(a)(1)(A).

[146]. See Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at 20 (S.D. Cal. May 14, 2018); Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626, at 26 (C.D. Cal. Jan. 25, 2022).

[147]. Owino, 2018 WL 2193644, at 20; see Novoa, 2022 WL 2189626, at 26.

[148]. See U.S. Gov’t Accountability Off., supra note 38; Kathryn Krawczyk, ICE is Rounding Up Green Card Holders, Week (June 28, 2018), https://theweek.com/speedreads/781984/ice-rounding-green-card-holders [https://perma.cc/SE52-M8XC].

[149]. See 12 U.S. Citizenship and Immigr. Servs., Lawful Permanent Resident Admission for Naturalization, pt. D, ch. 2 (2018), https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-2#footnotelink-32 [https://perma.cc/E2D3-7PXX].

   [150]. Stevens, supra note 26, at 450.

[151]. See id.; 8 U.S.C. § 1324(a)(1)(A) (making it unlawful to hire a noncitizen “knowing” they are unauthorized).

[152].Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 978 (W.D. Wash. 2017); Chen v. GEO Grp., Inc., 287 F. Supp. 3d 1158, 1167 (W.D. Wash. 2017).

[153]. See, e.g.,Patel v. Quality Inn S., 846 F.2d 700, 704 (11th Cir. 1988) (finding IRCA did not prevent awarding of damages to undocumented workers under FLSA); Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 254 (2d Cir. 2006) (finding IRCA did not prevent awarding of damages to an undocumented worker for personal injury under state labor law). But see Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151 (2002) (finding IRCA prevented the NLRB from awarding backpay to an undocumented worker).

[154]. SeeMadeira, 469 F.3d at 245; Patel, 846 F.2d at 704 (explaining that if FLSA did not cover undocumented individuals, employers would have an incentive to hire and underpay undocumented workers).

[155]. See Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at *23 (S.D. Cal. May 14, 2018) (rejecting Defendant’s motion to dismiss arguing IRCA prohibits employing “unauthorized aliens” but acknowledging that the argument that IRCA could bar recovery may be “potentially relevant in future motions”).

[156].Novoa v. GEO Grp., Inc., No. 5:17-cv-2514-JGB-SHK, 2022 WL 2189626, at *26 (C.D. Cal. Jan. 25, 2022).

[157]. See infra Part III.C.1.

[158]. See U.S. Const. amend. XI;Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411–12 (1821); United States v. Lee, 106 U.S. 196, 204 (1882); United States v. N.Y. Rayon Imp. Co., 329 U.S. 654, 663 (1947).

[159]. See Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 20–21 (1940); Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166–69 (2016).

   [160]. SeeCampbell-Ewald, 577 U.S. at 156, 160, 166.

   [161]. Geo Grp., Inc. v. Menocal, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026). The Court therefore concluded that GEO could not seek interlocutory appeal of the district court’s rejection of its “derivative sovereign immunity” defense. Id.

   [162]. See, e.g., Washington v. GEO Grp., Inc., No. 17-5806 RJB, 2019 WL 3565105, at 5 (W.D. Wash. Aug. 6, 2019); Nwauzor v. GEO Grp., Inc., No. 17-cv-05769-RJB, 2018 WL 4150909, at 1 (W.D. Wash. Aug. 6, 2018); Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 770–71 (9th Cir. 2025); Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626, at 20–21 (C.D. Cal. Jan. 25, 2022); Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151, 1173–77 (D. Colo. 2022); Menocal v. GEO Grp., Inc., No. 22-1409, 2024 WL 4544184, at 1 (10th Cir. Oct. 22, 2024), aff’d, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026).

   [163]. See supra note 162 (citing cases).

[164]. See Brief for the United States as Amicus Curiae in Support of Neither Party at 8–11, Barrientos v. CoreCivic, Inc., 951 F.3d 1269 (11th Cir. 2020) (No. 18-15081).

   [165]. PBNDS, supra note 56, at 407. GEO admitted there was no “prohibition on paying more” and in fact did so at various facilities. See Plaintiffs-Appellees’ Answer Brief at 9, Menocal, 2024 WL 4544184.

   [166]. Plaintiffs-Appellees’ Answer Brief at 9, Menocal, 2024 WL 4544184; see also Nwauzor, 127 F.4th at 771 (“The contract sets a minimum compensation of $1 per day, but it does not forbid payments in excess of that amount.”); Menocal, 635 F. Supp. 3d at 1176 (“[T]here is no evidence that ICE prohibited GEO from compensating its workers more than $1.00 per day. Instead, the evidence suggests the participants’ compensation was left to GEO’s discretion.”).

[167].Boyle v. United Techs. Corp., 487 U.S. 500 (1988); see also Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 646 n.4 (4th Cir. 2018) (“Boyle is inapposite to determining the applicability of derivative sovereign immunity.” (citing Boyle, 487 U.S. 500)); Elengold & Glater, supra note 115, at 987 n.79 (discussing their debatable decision to discuss Boyle alongside Yearsley as reinforcing their premise that these defenses are “interwoven, borrowed, and exploited to expand the scope of the sovereign shield, without those asserting the defense worrying too much about the original intent and meaning behind any one doctrine”).

   [168]. For further discussion on preemption, see infra Part III.C.1.

[169]. Boyle, 487 U.S. at 500 (internal quotations omitted).

[170]. See Menocal v. GEO Grp., Inc., 113 F. Supp. 3d 1125, 1134–35 (D. Colo. 2015); see also Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151, 1172 (D. Colo. 2022), appeal dismissed, No. 22-1409, 2024 WL 4544184, at *11 n.3 (10th Cir. Oct. 22, 2024), aff’d, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026).

[171]. See Sinha, supra note 41 (Thirteenth Amendment); Booth, supra note 63 (Trafficking Victims Prevention Act); Garfinkel, supra note 53 (Fair Labor Standards Act); Stevens, supra note 26, at 398–409 (Fair Labor Standards Act).

[172]. See David S. Rubenstein, Supremacy, Inc., 67 UCLA L. Rev. 1130, 1142 (2020) (explaining that federal contractors are generally immune from constitutional strictures under the state action doctrine (citing Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1369–70, 1403–06 (2003))); see also Lillian BeVier & John Harrison, The State Action Principle and Its Critics, 96 Va. L. Rev. 1767, 1786 (2010) (“Constitutional rules are almost all addressed to the government.”).

[173].Richardson v. McKnight, 521 U.S. 399 (1997) (citing 42 U.S.C. § 1983 and holding that private prison operators faced with § 1983 claims could not claim qualified immunity).

   [174]. Federal agents may be held liable for constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). But neither § 1983 claims nor Bivens claims have been successful against private federal actors. See, e.g.,Doe v. United States, 831 F.3d 309, 316 (5th Cir. 2016) (finding a detainee could not bring a § 1983 claim against CoreCivic because it was performing a federal function); Minneci v. Pollard, 565 U.S. 118 (2012) (finding a prisoner could not bring a Bivens action against the private operator of a federal halfway house).

   [175]. U.S. Const. amend. XIII, § 1.

   [176]. U.S. Const. amend. XIII, § 2.

   [177]. George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 Va. L. Rev. 1367, 1371 (2008).

[178].The Slaughter-House Cases, 83 U.S. 36, 50 (1872).

[179]. Id.; see also Bailey v. Alabama, 219 U.S. 219 (1911) (finding that compelling a person to work to pay off a debt is unconstitutional under the Thirteenth Amendment).

[180]. The Slaughter-House Cases, 83 U.S. at 37 (reasoning that the Thirteenth Amendment’s protection extends to labor by Mexican and Chinese immigrants); see also Sinha, supra note 41, at 41–42; Safstrom, supra note 52, at 216.

[181].Channer v. Hall, 112 F.3d 214, 217 n.5 (5th Cir. 1997) (quoting The Civil Rights Cases, 109 U.S. 3, 20 (1883)). Contrast Turner v. Unification Church, 473 F. Supp. 367, 371 (D.R.I. 1978), aff’d, 602 F.2d 458 (1st Cir. 1979) (refusing to recognize an implied right of action for private conduct under the Thirteenth Amendment), with Martinez v. Calimlim, 651 F. Supp. 2d 852, 864 (E.D. Wis. 2009) (recognizing a plaintiff’s direct cause of action against a private actor under the Thirteenth Amendment).

   [182]. Rutherglen, supra note 177, at 1367 (citing The Civil Rights Cases, 109 U.S. 3, 20 (1883)).

[183]. See generally Sinha, supra note 41; Safstrom, supra note 52; Cambridge, supra note 98. See also Lisa Knox, Hamid Yazdan Panah & Serafin Andrade Lopez, Strategic Lessons From Abolitionist Labor Struggle in Immigration Detention, LPE Project (May 30, 2023), https://lpeproject.org/blog/strategic-lessons-from-abolitionist-labor-struggle-in-immigration-detention/ [https://perma.cc/BW2Z-U28F] (blog post by an immigration attorney, legal advocate, and formerly detained organizer pointing out that the Exceptions Clause in the Thirteenth Amendment does not apply in immigration detention).

[184]. See, e.g., Channer, 112 F.3d. 214.

   [185]. U.S. Const. amend. XIII, § 1 (emphasis added).

[186]. See Channer, 112 F.3d at 215–16, 217 n.4 (finding the Thirteenth Amendment’s Exception Clause did not apply to Channer while he was in immigration detention, despite Channer being transferred there from prison where he served a sentence for an armed robbery conviction).

   [187]. Garfinkel, supra note 53, at 1314.

[188]. See Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893);Wong Wing v. United States, 163 U.S. 228, 235–38 (1896).

   [189]. 163 U.S. at 238.

[190]. See supra note 57 and accompanying text.

   [191]. Lauren Kares, Unlucky Thirteenth: A Constitutional Amendment in Search of a Doctrine, 80 Corn. L. Rev. 372, 372 (1995) (citing Steirer v. Bethlehem Area Sch. Dist., 789 F. Supp. 1337 (E.D. Pa. 1992), aff’d,987 F.2d 989 (3d Cir. 1992), cert. denied, 510 U.S. 824 (1993)).

[192]. See Kares, supra note 191, at 374–75.

[193]. Id. at 380.

[194]. See Channer v. Hall, 112 F.3d 214, 218 (5th Cir. 1997) (“Assuming without deciding that segregated detention is a form of legal punishment, we find that there would be at least some evidence that Channer’s services were compelled by the use of legal coercion.”); id. at 218 n.7 (“Channer’s services were not necessarily voluntary merely because he was paid for his labors. While receiving payment for services is relevant to determining voluntariness, we cannot resolve that factual question against Channer on this record.”).

[195]. Id. at 218–19.

[196]. See Brianne Power, When Is Forced Labor Consistent with the General Basic System of Free Labor? An Analysis of Historical Judge-Made Exceptions to the Thirteenth Amendment, onlabor (Apr. 26, 2018), https://onlabor.org/when-is-forced-labor-consistent-with-the-general-basic-system-of-free-labor-an-analysis-of-historical-judge-made-exceptions-to-the-thirteenth-amendment [https://perma.cc/C7VY-6E2K].

[197].Butler v. Perry, 240 U.S. 328, 333 (1916); see also United States v. Kozminski, 487 U.S. 931, 943–44 (1988) (reasoning the Thirteenth Amendment “does not prevent the State or Federal Governments from compelling their citizens, by threat of criminal sanction, to perform certain civic duties”).

[198]. See Bayh v. Sonnenburg, 573 N.E.2d 398, 411 (Ind. 1991) (finding patients who cooked, cleaned, and did laundry while in a mental hospital fell within the civic duty exception to the Thirteenth Amendment). But see McGarry v. Pallito, 687 F.3d 505, 514 (2d Cir. 2012) (finding that compelling a pretrial detainee to work in a laundry up to fourteen hours a day for three days a week cannot be a personally related housekeeping chore exempt from the Thirteenth Amendment).

   [199]. Both companies raised the civic duty exception as an affirmative defense against claims from detained workers under the TVPA, a federal statute promulgated by Congress under both Section Two of the Thirteenth Amendment and the Commerce Clause. See Sherman, supra note 98, at 1217;discussion infra Part II.B.

[200]. See Sherman, supra note 98, at 1217.

[201]. See Menocal v. GEO Grp., Inc., 113 F. Supp. 3d 1125, 1133 (D. Colo. 2015); Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at 15–20, 15 n.5. (S.D. Cal. May 14, 2018).

[202]. See Turner v. Unification Church, 473 F. Supp. 367, 374 (D.R.I. 1978), aff’d, 602 F.2d 458 (1st Cir. 1979). But see Martinez v. Calimlim, 651 F. Supp. 2d 852, 864 (E.D. Wis. 2009).

[203]. See generally Kares, supra note 191.

   [204]. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464.

[205]. See, e.g., id. § 102(b)(12) (“Trafficking in persons substantially affects interstate and foreign commerce.”); id. § 112(a)(2) (“Whoever knowingly . . . in or affecting interstate commerce . . . .”); id. § 102(b)(1) (“Trafficking in persons is a modern form of slavery, and it is the largest manifestation of slavery today.”); see also Sherman, supra note 98, at 1215; Heather Odell, Accountable to None? Challenging Sovereign Immunity Through the Trafficking Victims Protection Act, 63 B.C. L. Rev. 1517, 1549–50 (2022).

   [206]. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 112(a)(2), 114 Stat. 1464.

[207]. See Booth, supra note 63, at 588 (noting that a statutory strategy is more promising for detained workers than a constitutional strategy in light of Thirteenth Amendment precedent); Sherman, supra note 98, at 1221.

   [208]. In 2003, Congress amended the TVPA to provide a civil remedy for victims. Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, § 4(a)(4)(A), 117 Stat. 2875, 2878 (codified at 18 U.S.C. § 1595).

   [209]. U.S. Const. amend. XIII, § 2 (“Congress shall have power to enforce this article by appropriate legislation.”); Safstrom, supra note 52, at 218–19; Sherman, supra note 98, at 1218.

   [210]. Kares, supra note 191, at 376.

[211].Jones v. Alfred Mayer Co., 392 U.S. 409, 439 (1968) (“Whether or not the Amendment itself did any more than [abolish slavery]—a question not involved in this case—it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. For that clause clothed ‘Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.’” (quoting The Civil Rights Cases, 109 U.S. 3, 20 (1883))); see also Kares, supra note 191, at 377–79.

[212]. See, e.g.,Menocal v. GEO Grp., Inc., 113 F. Supp. 3d 1125, 1132 (D. Colo. 2015) (“[GEO] argue[s] that the TVPA is inapplicable because its purpose was to prevent human trafficking, and cases exclusively apply the TVPA to trafficking persons for labor and/or sex.”); Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2018 WL 3343494, at *12 (C.D. Cal. June 21, 2018) (“[GEO] . . . argues applying the TVPA here would go beyond the intent and purpose of the statute, which was to prosecute and deter the trafficking of persons over geographic spaces.”); Barrientos v. CoreCivic, Inc., 332 F. Supp. 3d 1305, 1310 (M.D. Ga. 2018), aff’d, 951 F.3d 1269 (11th Cir. 2020) (“CoreCivic contends that Plaintiffs fail to state a claim under the TVPA because Congress did not intend the statute to apply to lawfully held detainees.”).

[213]. See, e.g., Barrientos, 332 F. Supp. 3d at 1310(“CoreCivic argues that the TVPA is intended to apply narrowly to forced labor in the human trafficking context and that applying it to detainee work programs is ‘absurd’ and contrary to the intentions of Congress.”); see Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at *3 (S.D. Cal. May 14, 2018) (“[CoreCivic] contends that applying a forced labor statute to lawfully-detained civil immigration detainees would be both extreme and absurd.”). The “absurdity doctrine” is a canon of statutory interpretation that allows for the rare departure from the ordinary meaning of the plain text if no reasonable person could intend that result. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).

   [214]. Various academics have extensively detailed how both the plain text and the legislative intent behind 18 U.S.C. § 1589, the TVPA’s forced labor statute, confirm its application to detained workers. See, e.g.,Booth, supra note 63, at 593–97; Safstrom, supra note 52, at 220–28.

[215].Barrientos v. CoreCivic, Inc., 951 F.3d 1269, 1278 (11th Cir. 2020).

[216].Gonzalez v. CoreCivic, Inc., 986 F.3d 536, 539 (5th Cir. 2021).

[217]. See supra Part I.E.1 (Table 1); see also Hernandez Gomez v. GEO Grp., Inc., No. 1:22 Civ. 00868-ADA-CDB, 2022 WL 19266228 (E.D. Cal. Dec. 23, 2022); Ruderman v. McHenry County, No. 3:22-CV-50115, 2023 WL 130496 (N.D. Ill. Jan. 9, 2023); Yeend v. Akima Glob. Servs., LLC, 347 F.R.D. 405 (N.D.N.Y. 2024).

[218].Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151, 1198 (D. Colo. 2022), appeal dismissed, No. 22-1409, 2024 WL 4544184, at *4 (10th Cir. Oct. 22, 2024), aff’d, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026).

   [219]. 29 U.S.C. §§ 201–219.

   [220]. Id. § 206(a)(1)(C). Notably, the FLSA applies to immigrants regardless of work authorization status. See Jerusalem Cafe, LLC v. Lucas, 721 F.3d 927, 937 (8th Cir. 2013); Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1308 (11th Cir. 2013).

[221].Alvarado Guevara v. INS, 902 F.2d 394 (5th Cir. 1990); Ndambi v. CoreCivic, Inc., 990 F.3d 369 (4th Cir. 2021).

[222]. See generally Petition for Rehearing En Banc at 2, 4–9, Ndambi, 990 F.3d 369 (No. 19-2207); Garfinkel, supra note 53; Stevens, supra note 26; Comment, Employment Law—Fair Labor Standards Act—Fourth Circuit Holds That Detained Immigrant Workers Are Not “Employees” Under the Fair Labor Standards Act, 135 Harv. L. Rev. 1512 (2022) [hereinafter Harvard Ndambi Comment].

[223]. See Rutherford Food Corp. v. McComb, 331 U.S. 722, 728 (1947); Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33 (1961).

[224]. See Garfinkel, supra note 53, at 1324–25 (applying the economic realities test to detained workers and finding all but one of the factors suggest an employment relationship).

   [225]. This aligns with a uniform approach by courts to reject the application of the economic realities test to prison workers. Seeid. at 1322 (citing Matthew J. Lang, The Search for a Workable Standard for When Fair Labor Standards Act Coverage Should Be Extended to Prison Workers, 5 U. Pa. J. Lab. & Emp. L. 191, 204 (2003)).

[226]. Alvarado Guevara, 902 F.2d at 396 (finding the detained immigrant laborers similar to prison laborers “in that they have been incarcerated and are under the direct supervision and control of a governmental entity” and therefore “should not be protected under the FLSA”).

[227]. Ndambi, 990 F.3d at 371 (“The economic reality of the Plaintiffs’ situation . . . is almost identical to that of a prison inmate and does not share commonality with that of a traditional employer-employee relationship.” (quoting Alvarado Guevara, 902 F.2d at 396)).

[228]. Seesupra Part II.A; Garfinkel, supra note 53, at 1311, 1315 (noting that decisions like Alvarado Guevara, that deny FLSA protections in immigration detention, rely on an “unsubstantiated comparison” with criminal detention and therefore “should not have determinative authority over cases arising from the Voluntary Work Program”).

[229]. See, e.g.,Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1325 (9th Cir. 1991) (denying FLSA protections to prison workers in light of the “exceptions carved out by the courts” from involuntary servitude for those duly tried and imprisoned for a crime); see also Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at *23–25 (S.D. Cal. May 14, 2018) (rejecting analogies between civil immigrant detainees and prisoners for the purposes of minimum wage protections).

[230]. Ndambi, 990 F.3d at 372; Alvarado Guevara, 902 F.2d at 396.

[231]. See Petition for Rehearing En Banc at 2, 4–9, Ndambi, 990 F.3d 369 (No. 19-2207) (arguing the panel’s opinion violated “well-established principles of statutory interpretation”).

[232]. See, e.g., 29 U.S.C. § 203(e)(3)–(4).

[233]. See, e.g., Hale v. Arizona, 993 F.2d 1387, 1392 (9th Cir. 1993) (“[W]e cannot agree that the FLSA categorically excludes all labor of any inmate.”); Watson v. Graves, 909 F.2d 1549, 1556 (5th Cir. 1990) (finding FLSA coverage applied to prisoners performing work for a third party).

[234]. Ndambi, 990 F.3d at 372 (citing Bennett v. Frank, 395 F.3d 409, 410 (7th Cir. 2005)).

   [235]. 29 U.S.C. § 202(a); seeBennett, 395 F.3d at 410 (“People are not imprisoned for the purpose of enabling them to earn a living.”).

[236]. Ndambi, 990 F.3d at 372–73.

[237].Tony & Susan Alamo Found. v. Sec’y of Lab., 471 U.S. 290, 293–94 (1985) (finding that volunteers who received food, shelter, and clothing from a nonprofit foundation were covered under the FLSA).

   [238]. Garfinkel, supra note 53, at 1319 (citing Tony & Susan Alamo Found., 471 U.S. at 293–94).

   [239]. 29 C.F.R. § 531.30 (2012).

   [240]. Garfinkel, supra note 53, at 1320–21; see also Barrientos v. CoreCivic, Inc., No. 4:18-cv-00070-CDL, 2021 WL 6931810, at *4 (M.D. Ga. Mar. 10, 2021) (dismissing CoreCivic’s unjust enrichment counterclaim against plaintiffs and finding that CoreCivic’s “audacity in claiming that it should be compensated for providing basic necessities to detainees who it contracted to detain is astonishing”).

[241].Ndambi v. CoreCivic, Inc., 990 F.3d 369, 373 (4th Cir. 2021).

[242]. See 29 U.S.C. § 202(a);Petition for Rehearing En Banc at *13, Ndambi, 990 F.3d 369 (No. 19-2207) (arguing that “[w]hether CoreCivic met Appellants’ basic needs is a question of fact not suitable for disposition on a Rule 12(b)(6) motion”).

[243]. Ndambi, 990 F.3d at 374 (concluding that “the custodial detention context is inconsistent with the free labor market envisioned by the FLSA”); Alvarado Guevara v. INS, 902 F.2d 394, 396 (5th Cir. 1990) (reasoning that detained workers are “removed from American industry” and therefore “not within the group that Congress sought to protect in enacting the FLSA”).

   [244]. Stevens, supra note 26, at 441–42; see also Complaint for Declaratory and Injunctive Relief and Damages ¶ 31, Barrientos, v. CoreCivic, Inc., No. 4:18-cv-00070-CDL, 2020 WL 7021904 (M.D. Ga. Apr. 17, 2018) (“CoreCivic occasionally increases the wage rate it pays to kitchen workers to up to $8 per day when it needs workers to work twelve hours or more per day.”).

   [245]. Harvard Ndambi Comment, supra note 222, at 1517.

[246]. Id.; see 29 U.S.C. § 202(a)(3) (“The Congress finds that . . . labor conditions detrimental to the maintenance of the minimum standard of living . . . constitutes an unfair method of competition in commerce.”).

   [247]. Harvard Ndambi Comment, supra note 222, at 1516 (“[The Ndambi court’s] parsimonious reading of the statute stands at odds with the long-standing judicial credo that a broad reading of the FLSA’s provisions is necessary to effectuate the Act’s principal aims” (citing Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211 (1959)).).

[248].Ndambi v. CoreCivic, Inc., 990 F.3d 369, 372 (4th Cir. 2021) (quoting Harker v. State Use Indus., 990 F.2d 131, 133 (4th Cir. 1993)).

[249].Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992).

   [250]. Complaint, Nwauzor v. GEO Grp., Inc., No. 17-cv-05769-RJB, 2017 WL 11646687 (W.D. Wash. Sep. 26, 2017); Complaint, Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967 (W.D. Wash. 2017).

   [251]. See, e.g., Class Action Complaint for Unpaid Wages and Forced Labor, Menocal, 2014 WL 5389925; Second Amended Complaint, Hernandez Gomez, 2022 WL 19266228; Third Amended Complaint, Novoa, 2019 WL 8329599.

   [252]. Operation Lone Star in Texas offers a stark example of the dangers of state infringement in federal immigration. See Acacia Coronado & Paul J. Weber, Justice Department Sues Texas Over Law That Would Let Police Arrest Migrants Who Enter US Illegally, AP News (Jan. 3, 2024), https://apnews.com/article/texas-immigration-border-justice-department-ad3814ef6c6160d62fd899d7570ffc0b [https://perma.cc/56SM-HH24].

   [253]. Rubenstein & Gulasekaram, supra note 115, at 227.

   [254]. Interview with Maru Mora Villalpando (Apr. 8, 2024).

   [255]. Rubenstein, supra note 172, at 1136.

[256]. See Stevens, supra note 26, at 402; see alsosupra Part I.B (describing the for-profit immigration detention model); infra note 290 and accompanying text (countering claims that private detention centers would benefit economically from paying full labor costs).

   [257]. Alabama, Louisiana, Mississippi, South Carolina, and Tennessee. State Minimum Wages, Nat’l Conf. of State Legislatures (Jan. 1, 2025), https://www.ncsl.org/labor-and-employment/state-minimum-wages [https://perma.cc/HVV2-WBST].

[258]. Id.

   [259]. N.M. Stat. Ann. §§ 50-4-21–50-4-27(2020).

[260].Ndambi v. CoreCivic, Inc., 990 F.3d 369, 371 n.1 (4th Cir. 2021).

[261]. Id. at 371.

   [262]. Cal. Lab. Code §§ 1194, 1197, 1197.1.

[263]. See Martinez v. Combs, 231 P.3d 259, 279–81 (Cal. 2010).

[264].Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at 25–26 (S.D. Cal. May 14, 2018) (rejecting the FLSA economic realities test and denying CoreCivic’s motion to dismiss detained workers’ California minimum wage claims); Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2018 WL 3343494, at 6–7, 9 (C.D. Cal. June 21, 2018) (rejecting interpreting CMWL in accordance with the FLSA and denying GEO’s motion to dismiss detained workers’ California minimum wage claims); id. at 15 (granting detained workers’ motion for summary judgment on CMWL claims).

[265]. See Cal. Lab. Code § 2775(b)(1); see also Lynn Rhinehart, Celine McNicholas, Margaret Poydock & Ihna Mangundayao, Econ. Pol’y Inst., Misclassification, the ABC Test, and Employee Status 8 (2021),https://www.epi.org/publication/misclassification-the-abc-test-and-employee-status-the-california-experience-and-its-relevance-to-current-policy-debates/ [https://perma.cc/72UP-PDHU] (identifying the following states as adopting the ABC test for wage and hour laws without industry limits: California, Connecticut, Massachusetts, Nebraska, New Jersey, and Vermont).

[266]. See Guy Davidov & Pinna Alon-Shenker, The ABC Test: A New Model for Employment Status Determination?, 51 Indus. L.J. 235, 235 (2022); Hanoch Dagan & Catherine Fisk, Independent Contractors and the ABCs of Contract Law, 66 Ariz. L. Rev. 607, 609 (2024).

[267]. See Eric Markovits, Easy as ABC: Why the ABC Test Should Be Adopted as the Sole Test of Employee–Independent Contractor Status, Cardozo L. Rev. de•novo, 224, 254 (2020) (noting that “the ABC test could lead to many more workers receiving the benefits and protections they lawfully deserve”); Michael T. Alario, “We Want All Workers To Have The Right To Bargain Collectively”: How The ABCs Can Equalize The Gig Economy, 64 B.C. L. Rev. 1203, 1236–39 (2023).

[268]. Novoa, 2022 WL 2189626, at *10–11.

   [269]. Washington considered adopting the ABC test across most of the State’s labor laws in 2019 through HR 1515 and SB 5513 but neither passed. See Rebecca Smith, Washington State Considers ABC Test for Employee Status, Nat’l Emp. L. Project (Jan. 28, 2019), https://www.nelp.org/washington-state-considers-abc-test-employee-status/ [https://perma.cc/47GL-QPTQ].

[270].Nwauzor v. GEO Grp., Inc., 540 P.3d 93, 97, 104 (Wash. 2023).

[271]. Id. at 103–04 (“While we have stated that federal authority under the FLSA may provide helpful guidance in interpreting the MWA, we have also recognized that these two statutory schemes ‘are not identical and we are not bound by such authority.’” (citation omitted)).

   [272]. Wash. Rev. Code § 49.46.010(4) (defining employee as “any individual employed by an employer but shall not include” those individuals described in sections (a)–(p)); see also Rocha v. King County, 460 P.3d 624, 630 (Wash. 2020) (en banc) (“Instead of being primarily defined by employments included, the MWA carves out from the definition of ‘employee’ more narrow provisions that operate as exemptions.”).

[273]. Nwauzor, 540 P.3d at 101.

[274]. Id. at 98–102, 105.

[275].Menocal v. GEO Grp., Inc., 113 F. Supp. 3d 1125, 1129 (D. Colo. 2015).

[276]. Id. at 1129 (“The CMWO applies to employers and employees in four industries: (1) Retail and Service; (2) Commercial Support Service; (3) Food and Beverage; and (4) Health and Medical.” (citing Colo. Code Regs. § 1103-1:1)).

[277]. Menocal, 113 F. Supp. 3d at 1129; seesupra Part II.C.

   [278]. Annie Hollister, Litigating ICE’s “Voluntary Work Program,” onlabor (Apr. 10, 2022), https://onlabor.org/litigating-ices-voluntary-work-program/ [https://perma.cc/4KV5-WU7Z]; see also Peter Birks, Unjust Enrichment 1 (2005) (“[E]ven at the beginning of the 21st century unjust enrichment is still unfamiliar to most common lawyers.”).

[279]. See The Intellectual History of Unjust Enrichment, 133 Harv. L. Rev. 2077, 2078–79 (2020); Siyi Lin, A Tale of Transplantation: The Historical Evolution of the Law of Unjust Enrichment in China, in Rethinking Unjust Enrichment: History, Sociology, Doctrine, and Theory (Warren Swain & Sagi Peari eds., 2023).

[280]. See The Intellectual History of Unjust Enrichment, supra note 279, at 2086–89.

   [281]. Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. b (A.L.I. 2011).

   [282]. Hollister, supra note 278.

[283]. See, e.g., Complaint ¶¶ 8.1–8.9, Gonzalez v.CoreCivic, Inc., No. 1:18 Civ.169, 2018 WL 1043718 (W.D. Tex. Feb. 22, 2018); Second Amended Complaint ¶¶ 280–86, Hernandez Gomez v. GEO Grp., Inc.,No. 1:22 Civ. 00868-ADA-CDB, 2022 WL 19266228 (E.D. Cal. Dec. 23, 2022); Amended Complaint for Declaratory and Injunctive Relief and Damages ¶¶ 128–33, Barrientos v. CoreCivic, Inc., No. 4:18-cv-00070-CDL, 2020 WL 7021904 (M.D. Ga. Apr. 17, 2018); Third Amended Complaint ¶¶ 203–11, Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2019 WL 8329599 (C.D. Cal. Sep. 16, 2019); GEO’s Notice of Removal to Federal Court at 7, Washington v. GEO Grp., Inc., No. 3:17-cv-05806, 2017 WL 11646686 (W.D. Wash. Oct. 9, 2017); see alsosupra Part I.E.1 (Table 1).

[284]. Cause of Action for Unjust Enrichment in California, Thomson Reuters (Dec. 21, 2022), https://legal.thomsonreuters.com/blog/cause-of-action-for-unjust-enrichment-in-california/#source-1[https://perma.cc/74RY-TQFJ] (“Unjust enrichment is acknowledged and put into practice in 49 other states and by half of the Californian courts.”).

   [285]. Hollister, supra note 278.

   [286]. Ferraro, supra note 140.

[287].Menocal v. GEO Grp., Inc., 882 F.3d 905, 923 (10th Cir. 2018); Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 980–81 (W.D. Wash. 2017); Barrientos v. CoreCivic, Inc., 332 F. Supp. 3d 1305, 1313 (M.D. Ga. 2018).

   [288]. Defendant’s Motion for Summary Judgment at 16, Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151 (D. Colo. 2015) (No. 1:14 Civ. 02887-JLK-MEH) (citing evidence that GEO receives a 15 percent markup fee on their total costs, including labor); Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626, at *16 (C.D. Cal. Jan. 25, 2022) (quoting GEO’s CEO stating that increased labor would increase their costs and therefore their profits, which are calculated as a percentage of their overhead).

   [289]. Defendant’s Motion for Summary Judgment at 36, Menocal, 635 F. Supp. 3d 1151 (No. 1:14 Civ. 02887-JLK-MEH); Defendant The GEO Group, Inc.’s Notice of Motion and Motion for Summary Judgment at 45, Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626 (C.D. Cal. Jan. 25, 2022).

[290]. Menocal, 635 F. Supp. at 1197; Novoa, 2022 WL 2189626, at *16.

[291]. Barrientos, 332 F. Supp. at 1313, aff’d, 951 F.3d 1269 (11th Cir. 2020).

[292].Menocal v. GEO Grp., Inc., 113 F. Supp. 3d 1125, 1133 (D. Colo. 2015)

[293]. See, e.g.,Gonzalez v. CoreCivic, Inc., No. 1:18-CV-169-LY, 2019 WL 2572540, at *3 (W.D. Tex. Mar. 1, 2019), aff’d, 986 F.3d 536 (5th Cir. 2021) (“Having determined that Gonzalez’s claim under the TVPA survives the motion to dismiss, the court concludes that the derivative claims [of negligence and unjust enrichment] also survive at this time.”).

[294].Ndambi v. CoreCivic, Inc., No. CV RDB-18-3521, 2019 WL 4735428, at *2 (D. Md. Sep. 27, 2019), aff’d, 990 F.3d 369 (4th Cir. 2021).

[295]. Id.

[296].Ndambi v. CoreCivic, Inc., 990 F.3d 369, 371 n.1 (4th Cir. 2021) (“The parties agree that the NMMWA should be interpreted in accordance with the FLSA and that the appellants’ unjust enrichment claim depends on the success of their FLSA claim. Thus, our discussion is limited to interpreting the FLSA.”).

[297]. Menocal, 113 F. Supp. 3d at 1133.

[298]. See, e.g., id.; Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2018 WL 3343494, at 14 (C.D. Cal. June 21, 2018); Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at 27–28 (S.D. Cal. May 14, 2018).

[299]. See Prac. L. Com. Litig., Asserting Quasi-Contract Claims, Practical Law Practice Note w-014-9227 (Westlaw Practical Law). While some detention centers have detained workers sign agreements, courts have dismissed these agreements as unconscionable and unenforceable. Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151, 1198 (D. Colo. 2022), appeal dismissed, No. 22-1409, 2024 WL 4544184 (10th Cir. Oct. 22, 2024), aff’d, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026).

[300]. See Menocal, 113 F. Supp. 3d at 1133; Owino, 2018 WL 2193644, at *27 (citing Fed. R. Civ. P. 8).

[301]. See Owino, 2018 WL 2193644, at *28.

   [302]. Washington v. GEO Grp., Inc., No. 3:17-cv-05806, 2017 WL 11646686, at *1 (W.D. Wash. Oct. 9, 2017).

   [303]. Nwauzor v. GEO Grp., Inc., No. 17-cv-05769-RJB,2017 WL 11646687, ¶ 1.2 (W.D. Wash. Aug. 15, 2017).

[304].Nwauzor v. GEO Grp., Inc., 540 P.3d 93, 104 (Wash. 2023).

[305]. See, e.g.,Gonzalez v. CoreCivic, Inc., No. 1:18-CV-169-LY, 2019 WL 2572540, at *3 (W.D. Tex. Mar. 1, 2019), aff’d, 986 F.3d 536 (5th Cir. 2021).

[306].Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151, 1198 (D. Colo. 2022), appeal dismissed, No. 22-1409, 2024 WL 4544184 (10th Cir. Oct. 22, 2024), aff’d, No. 24-758, 2026 WL 513536 (U.S. Feb. 25, 2026).

[307].Washington v. GEO Grp., Inc., No. 3:17-cv-05806-RJB, 2018 WL 1083862, at *2 (W.D. Wash. Feb. 28, 2018); Chen v. GEO Grp., Inc., 297 F. Supp. 3d 1130, 1132–33 (W.D. Wash. 2018).

   [308]. Chen, 297 F. Supp. at 1133.

[309].Barrientos v. CoreCivic, Inc., No. 4:18-CV-00070-CDL, 2021 WL 6931810, at *1 (M.D. Ga. Mar. 10, 2021); Chen, 297 F. Supp. 3d at 1132.

[310]. Chen, 297 F. Supp. 3d at 1133; Nwauzor v. GEO Grp., Inc., No. 17-cv-05769-RJB, 2020 WL 1689728, at *9 (W.D. Wash. Apr. 7, 2020).

[311]. Washington, 2018 WL 1083862, at *2.

[312]. Nwauzor, 2020 WL 1689728, at *9.

[313]. Barrientos, 2021 WL 6931810, at *4.

[314]. The GEO Group Comments on Unfavorable Jury Verdict and Judgments in the U.S. District Court for the Western District of Washington, GEO (Nov. 4, 2021), https://investors.geogroup.com/news-releases/news-release-details/geo-group-comments-unfavorable-jury-verdict-and-judgments-us [https://perma.cc/46UQ-9PWE].

   [315]. The Ninth Circuit recently ruled in favor of detained workers. See Nwauzor v. GEO Grp., Inc., 127 F.4th 750 (9th Cir. 2025). GEO is now seeking to appeal to the Supreme Court. Petition for Writ of Certiorari, GEO Grp., Inc., v. Nwauzor, No. 25A464 (U.S. Jan. 9, 2026).

[316]. See Brief for the United States as Amicus Curiae in Support of Appellant, Washington v. GEO Grp., Inc., 127 F.4th 783 (9th Cir. 2025) (Nos. 21-36024, 21-36025). Notably, the Trump DOJ also filed a brief in support of GEO’s petition for rehearing. Brief for the United States as Amicus Curiae in Support of Petition for Rehearing, Nwauzor, 127 F.4th 750 (Nos. 21-36024, 21-36025).

[317].Brief for the United States as Amicus Curiae in Support of Appellant at 11, Washington, 127 F.4th 783 (Nos. 21-36024, 21-36025).

   [318]. U.S. Const. art. VI, cl. 2.

   [319]. Rubenstein, supra note 172, at 1137.

[320]. Id. at 1137, 1137 n.28 (citing Va. Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019) (explaining “[t]he Supremacy Clause supplies a rule of priority” as between federal and state law)); Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150, 162 (2016) (“Put simply, federal law preempts contrary state law.”).

[321].Rubenstein, supra note 172, at 1137.

[322]. See generallyid.; Rubenstein & Gulasekaram, supra note 115; Elengold & Glater, supra note 115.

   [323]. Rubenstein, supra note 172, at 1137; see also Elengold & Glater, supra note 115, at 971.

[324]. See Rubenstein, supra note 172, at 1133 (noting that private contractors are exempt from both constitutional protections and from statutory constraints on the government, such as the Administrative Procedure Act and Freedom of Information Act).

   [325]. Seeid. at 1133, 1139, 1156; see also Elengold & Glater, supra note 115, at 971–73 (arguing that the “expansion to cover nongovernmental actors” through preemption and intergovernmental immunity “enables and fosters a mutually beneficial alliance between corporate contractors and the executive branch,” which “operates to strip legal remedies from private individuals and state governments and to impede oversight from state and federal regulators”).

   [326]. U.S. Const. art. VI, cl. 2 (“Laws of the United States . . . shall be the supreme Law of the Land . . . Laws of any State to the Contrary notwithstanding.”); see, e.g., Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150, 162 (2016).

[327].Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992).

[328].Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (citations omitted).

[329].Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963).

[330].Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

[331].Maryland v. Louisiana, 451 U.S. 725, 746 (1981).

[332].Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at *16 (S.D. Cal. May 14, 2018) (“[C]ourts should assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.’” (quoting Arizona v. United States, 567 U.S. 387, 400 (2012))); see also Wyeth v. Levine, 555 U.S. 555, 565 (2009).

[333].Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21 (1987); see also Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 768 (9th Cir. 2025) (“The MWA falls squarely within the states’ historic police powers to establish and require payment of a minimum wage . . . . We therefore apply the presumption against preemption.”).

[334].Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2009).

[335].Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 978 (W.D. Wash. 2017);Chen v. GEO Grp., Inc., 287 F. Supp. 3d 1158, 1167 (W.D. Wash. 2017).

[336]. See De Canas v. Bica, 424 U.S. 351, 354 (1976) (“Power to regulate immigration is unquestionably exclusively a federal power.”); Plyler v. Doe, 457 U.S. 202, 225 (1982) (“The States enjoy no power with respect to the classification of aliens. This power is ‘committed to the political branches of the Federal Government.’” (quoting Matthews v. Diaz, 426 U.S. 67, 81 (1976))); see also U.S. Const. art. I, § 8, cl. 4 (granting Congress the power “[t]o establish an uniform Rule of Naturalization”).

[337]. See, e.g.,Hines v. Davidowitz, 312 U.S. 52, 61–62 (1941); Arizona, 567 U.S. at 394, 401–02.

[338]. See Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at 15 n.9, 17 (S.D. Cal. May 14, 2018); Washington, 283 F. Supp. 3d at 977; Chen, 287 F. Supp. 3d at 1165; Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626, at *25 (C.D. Cal. Jan. 25, 2022).

[339].Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2018 WL 3343494, at *4 (C.D. Cal. June 21, 2018).

[340]. Id.

[341]. Owino, 2018 WL 2193644, at *17.

[342]. Washington, 283 F. Supp. 3d at 978; Chen, 287 F. Supp. 3d at 1167.

[343]. Novoa, 2018 WL 3343494, at 4; Washington, 283 F. Supp. 3d at 977; Chen, 287 F. Supp. 3d at 1165; Owino, 2018 WL 2193644, at 17.

[344]. Chen, 287 F. Supp. 3d at 1165 (citing 8 U.S.C. §§ 1103, 1225, 1226, 1226a, 1231, 1324a, 1555(d)).

[345]. Washington, 283 F. Supp. 3d at 978; Chen, 287 F. Supp. 3d at 1167.

[346]. See 8 U.S.C. § 1324a(a)(1)(A) (making it illegal to knowingly hire undocumented immigrants); id. § 1324a(e)(4) (imposing civil penalties); id. § 1324a(f) (imposing criminal penalties).

[347]. See Garfinkel, supra note 53, at 1309.

[348]. See id. (analyzing the congressional purpose underlying IRCA (citing Kati L. Griffith, When Federal Immigration Exclusion Meets Subfederal Workplace Inclusion: A Forensic Approach to Legislative History, 17 N.Y.U. J. Legis. & Pub. Pol’y 881, 887–88 (2014))).

   [349]. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 111(d), 100 Stat. 3359, 3381.

[350].Wyeth v. Levine, 555 U.S. 555, 565 (2009) (citations omitted).

   [351]. 8 U.S.C. § 1324a(h)(2).

[352].Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 975 (W.D. Wash. 2017); Chen v. GEO Grp., Inc., 287 F. Supp. 3d 1158, 1164 (W.D. Wash. 2017).

   [353]. See Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2018 WL 3343494, at *3 (C.D. Cal. June 21, 2018); Washington, 283 F. Supp. 3d at 975; Chen, 287 F. Supp. 3d at 1164.

[354]. See Chen, 287 F. Supp. 3d at 1164; Washington, 283 F. Supp. 3d at 975.

[355]. Novoa, 2018 WL 3343494, at *3 (concluding that California Labor Code “does not impose penalties on employers for hiring unauthorized aliens”); Washington, 283 F. Supp. 3d at 975–76 (“Even if, as Defendant argues, the provisions of the Washington Minimum Wage Act are construed as ‘sanctions,’ they would not be imposed on account of employers hiring unauthorized aliens, but rather because of the failure to pay the prevailing minimum wage.”); Chen, 287 F. Supp. 3d at 1164 (same).

[356].Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at *18 (S.D. Cal. May 14, 2018) (citing Salas v. Sierra Chem. Co., 327 P.3d 797, 806 (Cal. 2014) (“[F]ederal regulation imposed by the Immigration Reform and Control Act of 1986 is not so pervasive as to leave no room for any state law on the same subject.”)).

[357]. Novoa, 2018 WL 3343494, at *4.

[358]. Id. at *5–6 (citing Reyes v. Van Elk, Ltd., 148 Cal. App. 4th 604, 617 (2007), cert. denied sub nom., Van Elk, Ltd. v. Reyes, 552 U.S. 1180 (2008)).

[359]. Novoa, 2018 WL 3343494, at *6.

[360]. Id.

[361].Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 978 (W.D. Wash. 2017); Chen v. GEO Grp., Inc., 287 F. Supp. 3d 1158, 1167 (W.D. Wash. 2017) (later Nwauzor v. GEO when the lead plaintiff was substituted).

[362]. Washington, 283 F. Supp. 3d at 978; Chen, 287 F. Supp. 3d at 1167.

[363]. Washington, 283 F. Supp. 3d at 978; Chen, 287 F. Supp. 3d at 1167.

   [364]. Reply Brief of Defendant-Appellant The GEO Group at 20–25, Nwauzor v. GEO Grp., Inc., 127 F.4th 783 (9th Cir. 2025) (Nos. 21-36024, 21-36025) (making a section 1555(d) preemption argument only).

   [365]. Brief for the United States as Amicus Curiae in Support of Appellant at 12–20, Washington v. GEO Grp., Inc., 127 F.4th 783 (9th Cir. 2025) (Nos. 21-36024, 21-36025) (making a section 1555(d) obstacle preemption argument only).

   [366]. An Act to Authorize Certain Administrative Expense for the Department of Justice, and Other Purposes, Pub. L. No. 81-503, § 6, 64 Stat. 380, 381 (1950) (codified as 8 U.S.C. § 1555(d)).

[367]. See Department of Justice Appropriation Act of 1978, Pub. L. No. 95-86, 91 Stat. 424, 426; Stevens, supra note 26, at 465–66.

   [368]. An Act to Authorize Certain Administrative Expense for the Department of Justice, and Other Purposes, Pub. L. No. 81-503, 64 Stat. 380, 381 (1950); see Reorganization Plan Number V of 1940, 5 Fed. Reg. 2223, 54 Stat. 1238 (1940).

   [369]. Sinha, supra note 41, at 25–29.

[370]. Id. at 27–29.

[371]. Id. at 29; Geneva Convention Relative to the Treatment of Prisoners of War art. 62, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

[372].Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2018 WL 3343494, at *4 (C.D. Cal. June 21, 2018) (citing Bernstein v. Virgin Am., Inc., 227 F. Supp. 3d 1049, 1071 (N.D. Cal. 2017)); Salas v. Sierra Chem. Co., 327 P.3d 797, 806 (Cal. 2014)); see also Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 977 (W.D. Wash. 2017) (“From the text of § 1555(d), Defendant has not shown that Congress intended to preempt state law regarding detainee wages.”); Chen v. GEO Grp., Inc., 287 F. Supp. 3d 1158, 1166 (W.D. Wash. 2017) (same).

[373]. Novoa, 2018 WL 3343494, at *4; Washington, 283 F. Supp. 3d at 977; see also Chen, 287 F. Supp. 3d at 1166.

[374]. Novoa, 2018 WL 3343494, at *4.

[375].Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at *20 (S.D. Cal. May 14, 2018).

[376]. Id. at *19.

[377]. Id.

[378]. Id. at *20.

[379]. Id.

   [380]. Brief for the United States as Amicus Curiae in Support of Appellant, Washington v. GEO Grp., Inc., 127 F.4th 783 (9th Cir. 2025) (Nos. 21-36024, 21-36025).

[381]. Id. at 16–17.

[382]. Id. at 14.

[383]. Id. at 16.

[384].Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 767–70 (9th Cir. 2025).

[385]. Id. at 769.

[386]. Id.

[387]. Id.

[388]. Id.

   [389]. Petition for Writ of Certiorari, GEO Grp., Inc., v. Nwauzor, No. 25A464 (U.S. Jan. 9, 2026).

[390].Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2018 WL 3343494, at *5 (C.D. Cal. June 21, 2018) (citing and rejecting GEO’s argument that FLSA field preempts California’s state minimum wage law). Notably, the federal government conceded in an amicus brief that “[p]reemption here does not arise from the FLSA,” which establishes a floor, not a ceiling, for state wage regulations. Brief for the United States as Amicus Curiae in Support of Appellant at 13 n.2, Washington v. GEO Grp., Inc., 127 F.4th 783 (9th Cir. 2025) (Nos. 21-36024, 21-36025) (citing Bruns v. Mun. of Anchorage, 182 F.3d 924 (9th Cir. 1999)); see 29 U.S.C. § 218(a).

[391].Owino v. CoreCivic, Inc., No. 17-CV-1112 JLS (NLS), 2018 WL 2193644, at *18 (S.D. Cal. May 14, 2018) (citing and rejecting CoreCivic’s argument that the “INA preempts any state regulation in the field of immigration detention”).

   [392]. GEO and CoreCivic have also argued their contractual relationship with ICE itself preempts detained workers’ state law claims. Professor Rubenstein critiques this type of argument as “preemption by contract.” Rubenstein, supra note 172, at 1166–90. District courts have readily dismissed these claims in detained worker cases, emphasizing that these contracts, and the PBNDS incorporating the VWP into them, do not have force of law and therefore cannot have any preemptive effect. See Washington v. GEO Grp., Inc., 283 F. Supp. 3d 967, 977 (W.D. Wash. 2017); Chen v. GEO Grp., Inc., 287 F. Supp. 3d 1158, 1166 (W.D. Wash. 2017); Novoa, 2018 WL 3343494, at *5; see also GEO Grp., Inc. v. Inslee, 720 F. Supp. 3d 1029, 1060 (W.D. Wash. 2024), reconsideration denied, No. C23-5626 BHS, 2024 WL 1621078 (W.D. Wash. Apr. 15, 2024) (finding PBNDS “does not indicate the intent of Congress” and therefore has no preemptive effect against state legislation regulating private immigration detention centers).

[393].McCulloch v. Maryland, 17 U.S. 316, 436 (1819).

   [394]. Id.; see Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 810 (1989).

   [395]. Elengold & Glater, supra note 115, at 993; see also Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626, at *22 (C.D. Cal. Jan. 25, 2022) (acknowledging some “ambiguity” but finding “that sufficient support exists for application of tax cases to state regulation cases.”). But courts have occasionally distinguished intergovernmental tax immunity as compared to other types of regulations. See Rubenstein, supra note 172, at 1192 n.361.

[396].United States v. Washington, 596 U.S. 832, 835 (2022); North Dakota v. United States, 495 U.S. 423, 435 (1990).

[397]. See generally Rubenstein, supra note 172, at 1190–99 (analyzing the application of intergovernmental immunity to private federal contractors as “privatized immunity”).

[398]. See United States v. New Mexico, 455 U.S. 720, 735 (1982); see also supra Part I.E.2.b.

[399]. Washington, 596 U.S. at 838 (citing North Dakota, 495 U.S. at 435; South Carolina v. Baker, 485 U.S. 505, 523 (1988)); see also United States v. County of Fresno, 429 U.S. 452, 462–63 (1977)).

[400]. New Mexico, 455 U.S. at 735.

[401]. See United States v. Muskegon Township, 355 U.S. 484, 486–87 (1958) (finding that contractor was not a federal instrumentality); Rubenstein, supra note 172, at 1193 n.366 (citing William J. Rich, Modern Constitutional Law § 34:54 (3d ed. 2011) (“Independent contractors or employees are not considered federal instrumentalities.”)).

[402].Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 (1988) (citing Hancock v. Train, 426 U.S. 167, 174 n.23, 179 (1976)).

[403].United States v. California, 921 F.3d 865, 882 n.7 (9th Cir. 2019) (citing Goodyear Atomic, 486 U.S. at 181).

   [404]. Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 760 (9th Cir. 2025).

[405]. Id. at 760, 765.

[406]. Id. at 760 (quoting GEO Grp., Inc. v. Newsom, 50 F.4th 745, 760 n.10 (9th Cir. 2022) (en banc)); see also United States v. New Mexico, 455 U.S. 720, 735 n.11 (1982).

[407]. Nwauzor,127 F.4th at 759–67 (dismissing GEO’s post-trial appeal on intergovernmental immunity); Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626, at *21–23 (C.D. Cal. Jan. 25, 2022) (denying GEO’s motion for summary judgment but also denying plaintiff’s motion for summary judgment to strike the affirmative defense).

[408]. See Newsom, 50 F.4th at 755; see also United States v. Washington, 596 U.S. 832, 839 (2022) (“[A] state law is thus no longer unconstitutional just because it indirectly increases costs for the Federal Government, so long as the law imposes those costs in a neutral, nondiscriminatory way.”).

[409]. See Washington, 596 U.S. at 839; Nwauzor, 127 F.4th at761 (citing Newsom, 50 F.4th at 755); Novoa, 2022 WL 2189626, at *22 (citing United States v. Boyd, 378 U.S. 39, 44 (1964)).

[410]. Novoa, 2022 WL 2189626, at *22 (“That ICE outsources work to private detention facilities like GEO does not make federal contractors instrumentalities, particularly as the latter pursue their ‘own private ends – in connection with commercial activities carried on for profit.’” (quoting Boyd, 378 U.S. at 44)).

[411]. Washington, 596 U.S. at 839 (citing Washington v. United States, 460 U.S. 536, 546 (1983); United States v. North Dakota, 495 U.S. 423, 438 (1990)).

   [412]. Rubenstein & Gulasekaram, supra note 115, at 230.

[413]. Id. at 234–35 (citing César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346, 1382–92 (2014)).

[414]. Id. at 235.

[415]. See, e.g., Ruelas v. County of Alameda, 108 F.4th 1208 (9th Cir. 2024) (California).

[416]. See, e.g., Miller v. Dukakis, 961 F.2d 7 (1st Cir. 1992) (Massachusetts); Sanders v. Hayden, 544 F.3d 812 (7th Cir. 2008) (Wisconsin); Strauss v. Dreyfus, No. C10-5646BHS, 2011 WL 809797, at *1 (W.D. Wash. Mar. 2, 2011) (Washington).

   [417]. Rubenstein, supra note 172, at 1198.

[418]. See Washington v. GEO Grp., Inc., No. 3:17-cv-05806-RJB, 2021 WL 3675011, at *4 (W.D. Wash. Aug. 19, 2021); Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 763–67 (9th Cir. 2025).

[419]. See supra Part I.B.

[420]. Nwauzor, 127 F.4th at 765–66.

[421]. Id. at 766 (citing Nwauzor v. GEO Grp., Inc., 540 P.3d 93, 99–100 (Wash. 2023)).

[422].Novoa v. GEO Grp., Inc., No. 5:17-cv-02514-JGB-SHK, 2022 WL 2189626, at *23 (C.D. Cal. Jan. 25, 2022).

[423]. Id.

   [424]. Interview with Jose Ruben Hernandez Gomez (Mar. 20, 2024).

   [425]. Andrew Benoit, Combating Human Rights Violations at Tacoma’s Northwest Detention Center, Trail (Feb. 29, 2024), https://trail.pugetsound.edu/?p=18636 [https://perma.cc/49EB-NH5D].

   [426]. Gustavo Sagrero Álvarez, Video Shows Heavily Armed Guards Detaining Hunger Strikers at Tacoma ICE Center After Using Tear Gas, KUOW (Feb. 1, 2024), https://www.kuow.org/stories/video-shows-heavily-armed-guards-detaining-hunger-strikers-at-tacoma-ice-center-after-using-tear-gas [https://perma.cc/8E7S-W38G].

   [427]. Johnson, supra note 21.