N.J. law barring prison operator from contracting with ICE is unconstitutional, judge says

A federal judge has struck down as unconstitutional part of a 2021 state law banning immigrant detention contracts in New Jersey.

U.S. District Judge Robert Kirsch sided with the U.S. Department of Justice and private prison operator CoreCivic, issuing a decision Tuesday firmly rejecting a key portion of the state law as a violation of the U.S. Constitution’s supremacy clause, which bars states from overriding federal statutes.

Kirsch called state lawmakers’ move to prohibit immigrant detention in New Jersey “naked interference” with federal immigration enforcement and said the state law — referred to in the ruling as AB5207 — is “a dagger aimed at the heart of the federal government’s immigration enforcement mission and operations.”

“Only Congress enacts laws regulating immigration into the United States, only the federal government enforces those laws, and only DHS detains individuals for civil immigration violations,” Kirsch wrote. “Although AB5207 purports to not directly regulate the federal government, the court finds that New Jersey cannot accomplish what it could not do directly — enjoining the federal government from detaining individuals for civil immigration violations — by simply omitting the federal government’s name from the law.”

Kirsch permanently enjoined the law as it pertains to CoreCivic, clearing the way for the U.S. Immigration and Customs Enforcement to renew its contract to detain immigrants at the Elizabeth Detention Center, where it has contracted with CoreCivic to house people for immigration violations since 2005. Its current three-year contract is set to expire Thursday.

Attorney General Matt Platkin said he will appeal.

“We are disappointed with today’s ruling, which we view as interfering with NJ’s right to protect its residents,” Platkin posted on social media. “Private detention facilities threaten the public health and safety of New Jerseyans, including when used for immigration purposes.”

Gov. Phil Murphy seconded that sentiment in a statement his office issued, but he added that he was pleased “the rest of the law” remains intact, meaning prohibitions on immigrant detention in other state or local facilities.

Three New Jersey counties previously housed ICE detainees in their jails, but they stopped in 2021, just about the time the law in question took effect.

Enforcing the law would close the only detention facility ICE now uses in New Jersey, and the only such facility within 60 miles of New York City, Kirsch noted.

Federal authorities and CoreCivic had argued the Elizabeth jail’s proximity to two international airports (Newark Liberty and JFK) made it crucial to enforcement operations.

They also warned its closure would force them to transport undocumented immigrants to out-of-state facilities, which could cause overcrowding in those facilities and put immigrants further from lawyers and loved ones, or release them, which they said could “create risks for the community,” according to the ruling.

“The result of any one of New Jersey’s neighboring states passing a comparable law — let alone an ensuing domino effect to other states — would result in nothing short of chaos,” Kirsch wrote.

New Jersey officials’ objections to federal immigration detention do not allow them to pass a state law that tramples federal law, Kirsch wrote.

“If New Jersey objects to how the federal government carries out its detention operations, it should use its voice, through its nationally elected representatives and federal elections, to make its objection heard,” he wrote.

The jail can hold 304 detainees; it booked 2,035 detainees during the 2023 fiscal year, according to the ruling.

Calls for closure mount

Immigration and civil rights groups blasted the ruling and called on the Biden administration to close the Elizabeth facility.

“We’re especially disappointed on the Biden administration siding with a private prison corporation, especially when during the presidential campaign he vowed to stop using private prisons,” said Araceli Argueta of the American Friends Service Committee.

The California-based Freedom for Immigrants echoed that criticism in a statement against Kirsch’s ruling.

“By repeatedly defending the private prison industry’s stake in the barbaric business of locking up immigrants en masse, Biden is not only breaking a key campaign promise — he’s putting more lives at risk in the deadly detention system,” said Andrea Carcamo, the group’s policy director. “Private prison operators like CoreCivic, incentivized to detain as many people for as long as possible, have built a multi-billion dollar business off the caging and suffering of mostly Black and brown immigrants. We need leaders who will act to end this parasitic relationship — not defend it.”

The Elizabeth facility is a “place where dreams turn to dust,” with detainees reporting that they have been held in solitary confinement, denied communications with social workers, and endured other inhumane conditions, Argueta said.

Amy Torres, executive director of the New Jersey Alliance for Immigrant Justice, said advocates will urge state lawmakers to act on other legislation to make New Jersey more of a sanctuary state for undocumented immigrants, including a bill dubbed the Values Act that would codify the attorney general’s immigrant trust directive.

That directive forbids local and state law enforcement from cooperating with ICE to enforce federal immigration laws. The bill, stalled since it was introduced in January 2022, would expand safeguards and prohibit public schools and libraries, health care facilities, shelters, and other social services from cooperating with ICE officers to identify or detain undocumented immigrants.

Advocates also are preparing to rally on a national day of action against immigrant detention on Sept. 15.

A CoreCivic spokesman said the company is “grateful” for the decision.

“CoreCivic plays a valued but limited role in America’s immigration system, which we have done for every administration — Democrat and Republican — for nearly 40 years, including more than 20 years at Elizabeth Detention Center,” spokesman Ryan Gustin said. “Our sole job has been and continues to be to help the government solve problems in ways it could not do alone – to help manage unprecedented humanitarian crises, dramatically improve the standard of care for vulnerable people, and meet critical public safety needs efficiently and innovatively.”