ICE, Pa. courts push back on bids to free immigrant families in Berks Center due to COVID-19

After being ordered to release all children in their custody due to the coronavirus pandemic,  U.S. Immigration and Customs Enforcement officials argued against releasing their parents with them in new court filings.

As COVID-19 sweeps through congregate settings such as jails and nursing homes, calls have amplified to release immigrants held at family detention centers, including the Berks Family Residential Center outside Reading, Pennsylvania.

On June 26, U.S. District Judge Dolly Gee wrote that family immigrant detention centers are “on fire” due to the pandemic and ordered ICE to release children from them by July 17. There were five families and a total of 16 people detained in the Berks Family Residential Center as of July 7, according to court documents.

Residents or staff have tested positive at both family immigrant detention facilities in Texas, but not in Pennsylvania. Independent, court-appointed monitors found that there was “non-compliance or spotty compliance with masking and social distancing rules” at the facilities, Gee noted.

In her order, the judge said children could either be released with a parent’s consent to a family sponsor or families could be released together. That choice now looms over her deadline.

In a different federal court proceeding this week, ICE officials argued against a petition to immediately release children with their parents, referring directly to Gee’s decision.

“Petitioners have not demonstrated how Judge Gee’s most recent orders applying the release provisions of the [Flores Settlement Agreement] to minors can be applied by this Court to the adult Petitioners in this case,” wrote the government’s attorneys. The Flores Settlement Agreement, as the case Gee oversees is called, does not apply to immigrant parents but in the past has resulted in their freedom.

U.S. attorneys also wrote that since detainees could catch COVID-19 outside detention centers too, families were no safer if released, saying that “a pandemic, such as this one, poses a threat to everyone without discrimination.”

Finally, they argued, if the conditions at the centers are inadequate, the solution should be fixing them rather than releasing people.

Attorneys representing the families have long argued that it’s in a child’s best interest to stay with a parent, and that turning children over to a sponsor, often another family member living in the United States, is indefinite separation.

“Either you keep your child at risk of coronavirus, and yourself, or you send your child off and you don’t know if you’ll ever see them again,” said immigration attorney Amy Maldonado. “It’s very possible that a child that’s released stays permanently in the U.S., and a parent is deported and never sees their child again.”

Arguments for immediate release of families also met with resistance in state courts this week.

On July 8, Pennsylvania Commonwealth Court Judge Michael Wojcik denied a request by attorneys representing families in the Berks Center that they be released “to avoid potential infection during the COVID-19 pandemic.”

Advocates argued that lack of social distancing, basic protective equipment such as masks and gloves, and inadequate medical care met the threshold for an emergency removal order. To qualify, a social service provider has to show “gross incompetence, negligence, misconduct in operating the facility or agency, or mistreatment or abuse of clients likely to constitute an immediate and serious danger to the life or health of the clients.”

The state Department of Human Services, which licenses the facility, denied those allegations, saying a recent remote inspection over FaceTime did not find evidence of gross negligence.

Judge Wojcik’s decision affirmed that argument, saying that interviews with staff, residents and the remote inspector supported the government’s position.

“The uncontroverted evidence belies Practitioners’ subjective fears and demonstrates that the [Berks Family Residential Center] has taken steps to mitigate the risk of residents being exposed to or contracting COVID-19,” he wrote, rejecting their release.

A press release shared by attorneys after the decision quoted from a declaration made by a detained father with the initials P.R.: “No one here speaks my language, and it is very hard to communicate and to express our feelings about being detained when it is so dangerous. I worry for my wife and my daughter, who are not well and are terrified. We are asking for help to stay alive.”

Karen Hoffmann, an attorney with Syrena Law who represents the families, said in a statement that they may appeal to the Pennsylvania Supreme Court.