Labor & Employment Law Daily Trafficking Victims Protection Act applies to work program in ICE facility
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Friday, January 22, 2021

Trafficking Victims Protection Act applies to work program in ICE facility

By Wayne D. Garris Jr., J.D.

In an interlocutory appeal, the court examined an ICE contractor’s argument that the TVPA does not apply to work programs at a federal detention center.

Affirming a district court’s refusal to dismiss a former detainee’s Trafficking Victims Protection Act claim against an ICE contractor, the Fifth Circuit held that the contractor’s work program for detainees was subject to the Act. The appeals court, relying on the plain language of the statute, noted that the TVPA imposes liability on “whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of” four coercive methods; and the term “whoever” clearly covered the contractor. Judge Oldham filed a separate dissenting opinion, while Judge Ho filed a separate concurring opinion (Gonzalez v. CoreCivic, Incorporated, January 20, 2021, Ho, J.).

The defendant, a federal government contractor, operates detention facilities on behalf of Immigration and Customs Enforcement (ICE). As part of its contract with ICE, the contractor provides a work program for the detainees at its facility. Under ICE’s Performance-Based National Detention Standards (PBNDS), the work programs must be voluntary.

TVPA violation. The plaintiff, a former detainee at one of defendant’s facilities, filed suit alleging that the contractor forced her to clean the detention facilities, cook meals for company events, perform clerical work and other labor. Further, if she refused, the contractor would impose severe punishments, including solitary confinement, physical restraints, and deprivation of personal hygiene products in violation of the Trafficking Victims Protection Act (TVPA).

District court proceedings. The defendant moved to dismiss arguing that the TVPA does not apply to “labor performed by immigration detainees in lawful custody.” The district court denied the defendant’s motion finding that the plain language of the TVPA covers labor performed by immigration detainees in a private detention center. The district court then granted the contractor’s motion to certify the following question for interlocutory appeal: “Whether the TVPA applies to work programs in federal immigration detention facilities?”

Statutory interpretation. The Fifth Circuit began by examining the plain language of the TVPA. Sections 1589(a) and 1595 of the Act impose liability on “[w]hoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of” four coercive methods.

The text of the statue did not support the contractor’s contention that the TVPA does not apply to work programs in its facility, the court said. The contractor is clearly an entity covered by the term “whoever.” Nor was the court persuaded by the contractor’s argument that applying the TVPA to its programs was akin to applying the statute to parents who require their children to perform household chores. “And that is presumably because we do not construe criminal statutes like larceny or battery to reflexively apply to the parent-child relationship, but rather read them in light of parents’ well-established rights over their own children,” the court responded.

Human trafficking. Next, the contractor argued that Section 1589 of the TVPA must be construed narrowly to cover only forced labor that arises in the international human trafficking context. The court rejected this argument noting that the text of Section 1589 itself is broad and not limited to the international human trafficking context.

The court concluded that the contractor failed to put forth any serious textual argument to support its argument that the TVPA does not apply to its programs. Instead the contractor relied on legislative history, but legislative history could not overcome clear statutory meaning. As a result, the court affirmed the district court’s denial of the motion to dismiss.

Dissent. In a dissenting opinion, Judge Oldham first argued that the majority erred in limiting its decision to the question certified on appeal. Citing 28 U.S.C. § 1292(b), Judge Oldham asserted that appellate jurisdiction applied to the order certified to the court and is not limited to the question formulated by the district court. Under his expanded view of the court’s jurisdiction, Judge Oldham would have granted the contractor’s motion to dismiss for failure to state a claim.

The plaintiff’s claim implicated two statutes: the PBDNS, which authorizes detainee work programs, and the TVPA, which prohibits human trafficking. Thus, in order to state a claim, the plaintiff had to first allege that the contractor violated the PBNDS by operating an involuntary work program. Then, she had to allege that work program violated the TVPA’s anti-slavery provisions. Here, the plaintiff alleged that she was forced to work and listed several alleged penalties that she was subjected to for refusing to work but did not allege that any of the contractor’s alleged actions violated the PBNDS. The complaint, at best, alleged violations of the TVPA, Judge Oldham said, but this was not enough to survive a motion to dismiss without specific allegations of a PBNDS violation.

Concurrence. Judge Ho, who wrote the majority opinion, issued a concurring opinion in response to the dissent. According to Judge Ho, the dissent’s approach is a “marked departure” from two established norms—the principle of party presentation and the judicial discretion not to reach uncertified issues. The appeals court is not required to go beyond questions certified in an interlocutory appeal and the dissent could not point to any authority requiring the court to do so. At best, the authority cited by the dissent held that it was a matter of judicial discretion. Judge Ho also noted that the majority’s approach was consistent with the Eleventh Circuit’s decision in Barrientos v. CoreCivic, Inc., a case involving the same contractor and the same issue on interlocutory appeal.

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