Berks County wins appeal over license for center housing immigrant mothers and children

The Pennsylvania Department of Human Services was wrong to revoke the child care license from a center housing immigrant mothers and children on behalf of the federal government, according to administrative law judge David Dudley.

On January 27, 2016, State Department of Human Services director Matthew Jones sent a letter to the Berks County Commissioners, notifying them that the center’s child residential facility license would not be renewed because housing women and children in it violates the terms of that license.

That move was applauded by immigrants rights advocates, who saw the non-renewal as a step towards shutting the center down. Immigration lawyers and the American Civil Liberties Union have argued that detaining immigrant children for long periods of time, as the Berks Family Detention Center does, goes against a 1997 law put in place to protect migrant children.

However, the Berks County Commissioners appealed Jones’ decision, arguing that the department had previously licensed the center without issue, and only revoked the license in response to public pressure. That appeal was heard by the Bureau of Hearings and Appeals, housed under the Pennsylvania Department of Human Services, over the course of 15 months.

On April 20th, administrative law judge David Dudley sided with the commissioners in his decision, writing that the department acted “arbitrarily and capriciously” in revoking the license, and ordering it to reverse the decision.

The center, which is jointly operated by the County and US Immigrations and Customes Enforcement (ICE), may not even need a state license at all, wrote Dudley in his decision.

“It is unclear in the hearing record, and muddied even more by the changing arguments of the Department, whether the [Center] is a facility for which licensure is required,” he said. “And if [the Center] is not in need of a license, the Department cannot revoke something which it has no authority to grant in the first place.”

Critics of the center, such as Temple University law professor Jennifer Lee, have been appealing to DHS to revoke the license and shut down the center for the last several years.

“I think it’s really problematic,” said Lee of the judge’s decision, which faults DHS for suddenly refusing to grant a license it had issued continuously for the previous 15 years.

“It’s saying, essentially, ‘Look, if you violate the law, you can go ahead and continue to violate it if you’ve been violating it for many years’,” she said.

Each party has 15 days from the decision to request reconsideration by the Secretary of the Department of Human Services, Ted Dallas.

DHS press secretary Rachel Kostelac said in a statement that the department is weighing its options and “at this time, no reconsideration request has been submitted.”

Since 2001, the Berks Family Residential Center has had an agreement with ICE to house immigrant detainees who have applied for legal status or whose claims have been denied and are awaiting deportation.

Located about 70 miles northwest of Philadelphia, the center is one of only four federal immigration detention facilities to house unauthorized mothers and their children. The others are in Texas. The smallest of the group, the Pennsylvania center has 96 beds and is used to hold families who the government has determined to hold for more than a few weeks.

These centers have found themselves the target of protests, lawsuits and petitions since President Barack Obama expanded their use in 2014.

Following a 2015 federal court decision, all centers are required to have a state-issued childcare facilities license to operate lawful. The Texas centers have repeatedly been denied by state and local courts when trying to apply for childcare facilities licenses under that state’s laws, but like the Berks Family Residential Center have continued to operate pending appeals.