After months of speculation as to whether The Mesa Verde Detention Facility in Bakersfield would shutter, Immigrations and Customs Enforcement say it will stay open for at least another year.
ICE is directly contracting with the company that owns Mesa Verde, the GEO Group, to operate the facility, according to documents submitted to the Federal Business Opportunities, or Fed Biz Opps, website this month. The $19,377,500 contract will expire on March 18, 2020, citing “unusual and compelling urgency.”
Since 2015, the GEO Group had an intergovernmental service agreement, or IGSA, with the city of McFarland to run the facility. In December McFarland pulled out of that agreement, bringing into question whether Mesa Verde would stay open because of a state law that limits involvement between for-profit detention facilities and local agencies.
SB-29, or the Dignity Not Detention Act, says cities, counties, and local law enforcement can’t amend or create new contracts with for-profit detention facilities, like Mesa Verde. Immigrant advocates wondered how ICE and the GEO Group would be able to stay open without contracting with a local agency.
But, having an IGSA with a local government is just one way to operate a facility like Mesa Verde, says Ivy Cargile, an assistant political science professor at California State University, Bakersfield. SB-29 also does not stop ICE and for-profit detention facilities from contracting with each other.
“It seems like this is a loophole that’s not necessarily created by the law, but it’s not covered by the law,” Cargile says. “What the California legislature was trying to avoid is government entities to not be a part of detaining undocumented immigrants in private prisons.”
Cargile says she finds it “very curious” that the contract between ICE and the GEO Group is only for one year.
“So we have to wonder why that is,” she says. “Are the GEO Group and ICE expecting that California is going to act on this and somehow nullify this?”
Even though the GEO Group and ICE found a way to create a new contract, some question the legality of it.
“That’s sort of what we’ve been trying to figure out, how they were able to enter into this direct contract the way that they did,” says Liz Martinez, director of advocacy and communications at Freedom for Immigrants, a Los Angeles-based organization focused on ending immigration detention. The group also helped draft SB-29.
Typically, government agencies like ICE need to have a competitive bidding process before entering into another contract. Federal law requires government agencies to have an open period where companies can bid for these contracts; it’s a way to make the process fair and transparent.
The bidding process takes time and ICE is able to go around it for now because of the “unusual and compelling urgency” it is citing. In the documents posted on Fed Biz Opps, ICE explains why it needed to bypass this process and keep Mesa Verde open.
If Mesa Verde were to close, the 400 people inside would have to be transferred to other facilities, the documents say. Some of the detainees have medical conditions and if they were relocated “this could result in serious injury to the detainees as well as incur an unnecessary serious financial burden” to move all these people.
“What is that unusual and compelling urgency?” Martinez asks. “That argument does not hold because if they truly cared about the well-being of the detained individuals they would have released them a long time ago.”
The attorney general’s report on detention facilities, Immigration Detention in California, was released last month. The report found Mesa Verde was compliant with only four out of the 16 national detention standards. Deficiencies in food service, medical care, phone access, and legal material were reported.
“The only urgency that we see is that they’re just trying to push the administration's anti-immigrant agenda and line the pockets of private prison companies,” Martinez says. “It has nothing to do with the well-being of the individuals detained inside.”
The GEO Group referred questions about this new contract to ICE. In an emailed statement ICE officials say, “The award of the sole-source contract is necessary to prevent the immediate disruption of operations while ICE continues its competitive contract process.”
“Without continued use of the facility, ICE would be required to relocate almost 400 detainees to facilities farther away from their families and attorneys,” the statement says.
Grisel Ruiz, a staff attorney at the Immigrant Legal Resource Center, which also helped draft SB-29, says the exception ICE is citing to continue operating follows a recent trend.
“The urgency exception that they’re relying on sounds awfully similar to the manufactured border crisis,” Ruiz says. “It seems awfully convenient that our federal government has a track record now for manufacturing emergency to justify their bad practices on the ground, to justify offense, to try to justify circumventing the process they should be following. It’s an unfortunate trend, but it’s a trend the public should be aware of.”
Finding a way around the bidding process and relying on an exception should be called into question, Ruiz says.
“Even if it is lawful, are they doing it in the right way?” Ruiz asks. “Should they even be relying on this exception?”
Advocates who know what’s been going on with Mesa Verde are upset it’s still open, Cargile says. Especially because there isn’t a lot of transparency in terms of what goes on inside the facility.
“It makes some community members feel uneasy,” she says. “This is also a very politically conservative area so I’m assuming that on the other hand there are also those people who are completely on board with it.”