Governor Wolf, Free the Berks Families

Familias Separadas Harrisburg Capitol 11-3-18
Michelle Angela Ortiz, “Familias Separadas,” 2018.

On Friday, June 26, Judge Dolly Gee ruled in federal court in California that ICE has until July 17 to release children detained at three family immigration prisons nationwide, since they are not adequately protected from infection with COVID-19. After learning that COVID-19 had already entered the two family prisons in Texas, Judge Gee wrote that the family prisons “are ‘on fire’ and there is no more time for half measures.” While multiple news outlets covered Judge Gee’s order as though immigrant families would automatically be released, ICE has disregarded and disobeyed Judge Gee’s past orders. On Wednesday, July 1, ICE argued in a separate case that the agency should not be required to release the detained families as Judge Gee had ordered. 

In April, families detained at the Berks County Residential Center (BCRC) sued the Pennsylvania Department of Human Services (PA DHS) for failing to issue an Emergency Removal Order to protect them from infection during the pandemic. Issuance of the Emergency Removal Order is mandatory when there is an “immediate and serious danger to the life or health” of the children. 

From May 26-29, the Commonwealth Court of Pennsylvania heard testimony from parents detained at BCRC, a medical expert, lawyers representing detained families, the director of BCRC, and the PA DHS inspector charged with monitoring conditions at BCRC. PA DHS argued that it is not required to issue an Emergency Removal Order because the agency alleges that the families are safe from infection and would receive adequate medical care if infected. Extensive evidence was submitted to the court that the families are not–and cannot be–safe from infection with COVID-19 while detained at the family prison, and that BCRC has a long history of serious medical neglect of detained children. 

Soon after Judge Gee issued her order last week, Pennsylvania Governor Tom Wolf released a public statement about the order. In the statement, Governor Wolf appeared to support the prompt release of the families detained at BCRC. However, he completely ignored the ongoing lawsuit against his own administration for failing to protect the detained children during the pandemic. Worse, several of his assertions contradicted court filings or sworn testimony from PA DHS itself. 

What follows is Governor Wolf’s public statement, line by line (in italics), compared with what the state actually argued in Commonwealth Court:  

Gov. Wolf: The Wolf Administration applauds the order of a federal judge announced late Friday to release children held with their parents at the Berks County Residential Center in Berks County and two other federal immigration detention facilities operated by the U.S. Immigration and Customs Enforcement (ICE). Governor Wolf has been clear and consistent in opposing the facility’s use for family detention.

What PA DHS argued: While Governor Wolf claims to oppose family detention at BCRC, he refuses to use the authority he has to direct PA DHS to enforce state child protection laws and order the children to be released. Instead, PA DHS argued that the families have “no clear right to an ERO as BCRC has implemented mitigation strategies and no COVID-19 outbreak has occurred.” DHS Brief of 6/15/20 at 31. PA DHS also argued that the decision whether to release the children should be left to ICE and the federal courts, functionally leaving a void at BCRC where state child care law does not apply. PA DHS argued, “Because there is another adequate and more appropriate remedy, this Court should deny” the relief that the detained families are requesting. DHS Brief at 31.

Gov. Wolf: Families, particularly those with children, seeking refuge and opportunity in the United States should not face indefinite detainment in guarded facilities while they wait for a day in court and a fair hearing of their immigration case.

What PA DHS argued: While Governor Wolf acknowledges the plain truth that families are detained at Berks against their will, PA DHS argued in Commonwealth Court that BCRC is not a detention center, only a “non-secure residential program.” (“BCRC provides a non-secure residential program for families whose immigration proceedings remain pending.” DHS Brief at 2.) Again, PA DHS is fighting in court to avoid complying with the agency’s legal duty to protect the children, meaning that the Wolf administration itself shares responsibility for keeping those children in “indefinite detainment in guarded facilities.”  

Gov. Wolf: This is true all of the time, but it is especially important during a global pandemic when congregate settings have proven particularly vulnerable to the dangerous and extremely contagious COVID-19 virus.

What PA DHS argued: Despite Governor Wolf’s purported concern about COVID-19 at BCRC, PA DHS argued in its court filings that children detained at BCRC are safe from infection from COVID-19 because “BCRC has taken appropriate steps to address COVID-19.” DHS Brief at 21. To the contrary, evidence presented in Commonwealth Court showed that only two detained people and one staff member had been tested for COVID-19 at the time of the hearing; that PA DHS’s inspector did not review children’s post-intake medical records and was not aware that multiple children at BCRC had suffered from fevers since the pandemic began; that social distancing could not reliably practiced by the very young children detained at the prison and in fact was not practiced; that young children were not provided with appropriately-sized masks and could not consistently wear masks due to their young age; that BCRC staff and other personnel came and went from the prison on a daily basis, potentially bringing COVID-19 into the prison; and that detained parents were tasked with cleaning shared areas at BCRC for one dollar per day, potentially exposing them to COVID-19. 

The only medical expert to testify in the proceedings, pediatrician Dr. Alan Shapiro, stated under oath that “unless you have a closed system with no entry or exit … it’s impossible to prevent the infection from coming into a facility.” He continued, “that’s the only way you could prevent something like this from happening … in particular something that’s as infectious as COVID.” This has proven true after COVID-19 made its way into both of the family prisons in Texas. 

PA DHS, despite presenting no expert medical testimony of its own, argued that “Dr. Shapiro’s testimony, that the only way to protect the Petitioners is to release them to the community, should be given little to no weight and is undermined by the absence of a single case of COVID-19 at BCRC in the three months since the Governor issued his Proclamation of Disaster Emergency.” DHS Brief at 24.

PA DHS actually argued that detained families are safer remaining at the Berks family prison than being released into freedom with their families. (“In addition to the lack of the evidence necessary to issue an ERO, an ERO is unwarranted because it is unclear whether the Petitioners would be safer if the ERO were to issue.” DHS Brief at 26.) DHS argued that “if the residents are released to the community, they are still exposed to the threat of COVID-19, as we all are, but will be without on-site medical care, food services, and other residential services that satisfy their immediate needs.” DHS Brief at 28.

PA DHS’s assertion that people quarantined at home are less safe than people locked in a closed, congregate facility is categorically false. Detained parents have repeatedly said that they would rather take care of themselves and their children on their own, outside of a prison. BCRC provides “on-site medical care, food services, and other residential services” in the same way that a prison does, but few prisoners would give up their freedom for the promise of substandard food and inadequate medical care, especially during a pandemic. Especially when, at the time of the hearing, more than half of all ICE detainees nationwide who were tested for COVID-19 tested positive. BCRC is a prison for immigrant families, and PA DHS’s argument is false and misleading. 

Gov. Wolf: All people, regardless of their nationality or immigration status, deserve dignity, liberty and safety. In January 2016, the Wolf Administration revoked the Berks County Residential Center’s license to operate as a Child Residential Facility. Berks County, which operates the center under a contract with the federal government, appealed the revocation and the facility has been legally able to operate while its appeal is pending.

What PA DHS argued: While it is true that Berks County’s appeal of PA DHS’s revocation of its child care license is still pending, PA DHS has entered into an unlawful agreement with Berks County to allow it to remain in operation even though the 2016-17 state child care license has now expired. PA DHS did not have to allow Berks County to operate on an expired license but chose to do so anyway, so formerly-detained families separately sued PA DHS in Commonwealth Court to compel them to end that agreement. J.S.C. v. DHS, 678 M.D. 2019, (Pa. Cmwlth. 2019). PA DHS is fighting that lawsuit as well. Incredibly, PA DHS argued in that case that Berks County’s “protected property interest in its license” outweighs the rights of the detained children to be safe and free. Again, PA DHS’s actions in court speak louder than Governor Wolf’s words. 

Gov. Wolf: The Department of Human Services has continued to conduct regular and unscheduled monitoring visits while the center operates during the appeal process

What PA DHS argued: PA DHS’s inspector testified in Commonwealth Court that she had coordinated inspections in March and May ahead of time with the director of BCRC. The inspections were not unscheduled, BCRC had full knowledge of them ahead of time and could prepare accordingly.  

Gov. Wolf: The Wolf Administration suggested several alternative uses for the facility, but Berks County officials were unwilling to consider them and chose to continue the contract with ICE for the detention center. The Wolf Administration will work with federal and Berks County officials to ensure the safe release of people in custody and provide any assistance necessary. We hope that this order marks the beginning of the end of family detention in the United States.

What PA DHS argued: PA DHS argued in court filings that it should be excused from issuing an Emergency Removal Order because “[i]f this Court were to direct the Department to issue an ERO, the residents would remain in federal custody.” PA DHS argued that even if ICE were inclined to release the families to family members or other sponsors in the community, the Commonwealth Court “should not direct the Department to issue an ERO because it is unclear whether the Petitioners would be in a better place or whether discharge would be in their best interests.” The parents of the detained children have told the Commonwealth Court that they do not want their children detained in conditions they believe are unsafe during the pandemic. Would any parent want their child locked in a prison where they could be infected with COVID-19 at any time? Isn’t a parent in the best position to know what is in the best interests of their own children? The Wolf administration evidently believes otherwise. 

Family detention will end in the United States when elected officials like Governor Wolf use their authority to enforce the law and stand up to ICE. Instead, Governor Wolf’s administration has been telling courts one thing and the public another. The way forward is clear: Governor Wolf must direct PA DHS to issue an Emergency Removal Order to release the Berks families before COVID-19 enters BCRC like it has in both Texas family prisons.  

The Left Case for Open Borders

Read this important piece from John Washington in the Nation to understand not only the Left case for open borders but why open borders is the immigration policy framework most consistent with the stated principles and values of the Left. Washington argues that borders don’t just reflect divisions among societies, they create and reinforce gaps in wealth, security, political power, and cultural understanding:

The oft-cited and oft-exaggerated comparison of El Paso as one of the safest cities in America and Juárez as suffering from uncontrollable violence is not because the border wall protects El Paso from the violence or poverty of Juárez. The wage gap and security disparity are because of the border wall: transnational corporations drawing massive numbers of nearly starvation-wage workers to Juárez and exploiting a paucity of labor protections. And with US illicit-drug demand constant over the years, a hardened border makes trafficking and smuggling more lucrative for the paramilitary cartels and the corrupt state agencies they work with, entrenching their stranglehold on the population. More than marking the difference between people, therefore, borders make the difference—imaginary lines fissuring families, cultures, and ecosystems.

Borders do not enhance security or communal ideals; rather, they are exploited by demagogues to gain, maintain, and expand power:

[A]s the historian Greg Grandin writes, borders “announce the panic of power.” It’s a point that seems abundantly evident as Trump, Viktor Orbán, Recep Tayyip Erdoğan, Benjamin Netanyahu, and other authoritarian leaders try to grip power by inciting panic at the fraying edges of imaginary ideals.

Washington articulates what is often lost in discussions about immigration policy: that immigration restrictions not only limit freedom of movement but represent a pervasive and unjustifiable formal impediment to fair and equal treatment under the law. Immigrants are excluded from access to basic rights and freedoms in a structured way that defines the parameters of citizenship, mirroring the tradition of legal and social exclusion of Black Americans, from slavery to the carceral state. Immigrants can’t vote but are scapegoated by elected officials, are required to pay taxes but are excluded from social programs funded by those taxes, are precluded from working legally yet lauded for “doing the jobs Americans won’t do,” and they work in unsafe low-wage occupations but can’t access basic health care. Immigrants live in a state of perpetual contingency, at risk of being imprisoned and exiled at any time. The U.S. government is creating a kind of totalitarian state for immigrants, encouraging people to call ICE out of civic duty, deputizing anyone with prejudice and a grudge to participate in state-sanctioned ethnic cleansing. We’ve seen this all before, but somehow can’t draw the historical connections. For basic rights to matter in a system where millions of people are embedded in society and/or seeking refuge from economic or political repression but are never able to become citizens, rights must be disaggregated from citizenship:

To be a true freedom, the freedom to move across borders, therefore, must be accompanied by the ability to access all the rights that native-born residents enjoy: The right to pay into social programs and to ultimately benefit from them. The right to be protected by labor laws, to access minimum wages, overtime protections, and more. The right to unionize and to collectively bargain without fear of reprisal. The right to live free from fear of being hounded by police or immigration officers. The right, perhaps after a period of residency, to vote in your new home and have a say in its future. There’s no real reason for these rights to be tied to citizenship, and, as the above has hopefully shown, ample reasons for them not to be—all that remains is to work out how we get there.


Finally, Washington interrogates the flawed premises underlying most liberals’ current preferred immigration policy: a tragically unworkable “comprehensive immigration reform” that would trade a partial and burdensome amnesty for additional border restrictions and immigration enforcement. Yet even this flawed and partial solution has remained perennially out of reach, pushed off to the next election, and then the next, and the next. There is an urgent need for a proactive, rights-based immigration policy framework on the Left, but the shortcomings of the current approach remain invisible to the broad spectrum of elected officials on the left and the advocates who tell them what to think and say about immigration. Washington poses the question: 

Is it time to seriously work through what a world would be like that allowed any people to leave their country and enter a new one freely, without penalty, and without forcing them into underground economies or worse? Is it time to envision a transnational movement that advocates for equal rights for all people, regardless of birthplace? Is it time, in other words, for us to open the borders?
. . .
It’s typical when defending open borders to go straight to the counterarguments—why there wouldn’t be an overwhelming influx of migrants, why wages wouldn’t plummet, why there wouldn’t be a paralyzing run on government services, and why crime wouldn’t increase, all of which are likely true. But policies are rarely won with defense—allaying imagined fears can solidify those fears—and the affirmative argument for opening borders is the more compelling: how a borderless world would lead to more freedom, more equality, and more justice. As [Harsha] Walia writes, “All movements need an anchor in a shared positive vision, not a homogeneous or exact or perfect condition, but one that will nonetheless dismantle hierarchies, disarm concentrations of power, guide just relations, and nurture individual autonomy alongside collective responsibility.”