A 9th Circuit panel tossed California’s ban on private immigration facilities. That could change on appeal

Lawyers for a private prison company traded arguments with the state of California before the 9th Circuit Court of Appeals in Pasadena on Tuesday over a lawsuit challenging state legislation banning private, for-profit prisons and immigration detention centers.

Although no ruling has been made, the outcome of the case could affect the future of the private prison industry in several states beyond California.

When California legislators passed Assembly Bill 32 in 2019, they saw their state as a leader in the battle to rid the country of private detention, and hoped that others would follow suit.

California’s ban affects private facilities contracted by U.S. Immigration and Customs Enforcement to detain immigrants. About 25,000 people are currently being held in detention in the U.S. And though private prisons are responsible for less than 10% of the total U.S. prison and jail population, they hold nearly 80% of people in immigration detention.

The private prison ban would force the closure of seven privately run detention facilities and leave California with only one county jail that holds immigrants for deportation. ICE argued that the closures would force detainees to be transferred out of state, away from family and lawyers, while supporters of the law said ICE could instead use alternatives to detention, such as ankle monitors.

Other states including Washington and New Jersey also have banned private immigrant detention centers.

GEO Group, a Florida-based private prison corporation, brought its lawsuit days before AB 32 took effect Jan. 1, 2020, alleging that the purpose of the bill is to “undermine and eliminate the congressionally funded and approved enforcement of federal criminal and immigration law.”

Not long afterward, the Trump administration filed its own lawsuit with similar claims against the law, which prohibits new for-profit detention contracts and phases out current facilities entirely by 2028.

In October 2020, a U.S. district judge in San Diego largely upheld the private prison ban, saying that the state has the right to regulate the conditions of confinement of any facility within its territory. But then a 9th Circuit panel of judges voted 2 to 1 that California must exempt federal immigration detention centers from its ban on for-profit prisons.

On Tuesday, Michael Kirk, on behalf of GEO, and Mark Stern, representing the federal government, argued before the judges that Congress has the authority to utilize contracted private companies when necessary.

“California cannot tell the United States how and who can run their detention centers,” Stern said.

But the court pressed Kirk on why the use of private prisons is the only way in which the federal government could achieve its objective of arresting and detaining immigrants who come to the U.S. illegally.

This federal objective has shifted through changes in the Oval Office. The Trump administration expanded the use of immigration detention. Then-candidate Joe Biden made a campaign promise to end private prisons. But the Biden administration’s Justice Department chose to take over the challenge to California’s law initiated under Trump.

“The question is, can the government still achieve the federal objective,” said Judge Ryan D. Nelson, a Trump appointee. “The federal government has multitudes of burdens. It clearly does and can still achieve the objective, though.”

He went on to argue that ICE — which operates only a handful of facilities around the country — could potentially buy these facilities, in which case they would no longer fall under the purview of AB32 and could be legally operable.

Michael Kaufman, a senior staff attorney with the American Civil Liberties Union of Southern California, said in an interview that he remains hopeful about the implications for other states if the 9th Circuit rules in favor of California.

“The outcome here may indicate how much discretion states have when it comes to regulations that might affect the federal government’s immigration detention centers,” Kaufman said. “So it’s obviously a case of great importance that can have big impacts across not just California but the rest of the country.”

Some legal analysts believe it’s possible that whichever way the 9th Circuit rules, this case could end up on the desk of the U.S. Supreme Court.

“I think it’s a definite possibility,” said Hamid Yazdan-Panah, advocacy director of Immigrant Defense Advocate. “The reality is that you can almost assume which way the Supreme Court would rule on this case because of political affiliations as opposed to like, a really serious legal discussion, or analysis.”

Times staff writer Andrea Castillo contributed to this report.