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.