Sen. Bob Casey (D-PA) took to Twitter Wednesday to protest the deportation of a 5-year-old asylum seeker and his mother from a family detention center in rural Pennsylvania, to their native Honduras.
“We are better than this,” Casey wrote in a storm of outraged messages to President Trump after appeals to immigration authorities and White House Chief of Staff Reince Priebus had failed.
Attached to a picture of the deported boy with his face blurred, Casey tweeted, “You have the power to help this child return to safety.”
In fact, concerns for the boy’s safety had also been raised just one day earlier in a letter Casey co-authored that called for the boy’s release, along with three other Central American families detained for nearly 600 days at the Berks County Residential Center by Immigration and Customs Enforcement (ICE).
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“With more pressing issues facing ICE and the need to spend our limited federal resources wisely,” Casey wrote along with 21 fellow lawmakers, “there are more cost-effective and humane approaches to this situation.”
The U.S. Supreme Court last month denied other families detained at Berks a chance to remain in the United States and challenge the rejection of their asylum claims despite the danger they face if deported.
Now human rights advocates are calling on Pennsylvania’s Department of Human Services (DHS) to double down on its refusal to renew a child-care license for Berks that is required at facilities where ICE detains children longer than 20 days.
This comes as a similar debate plays out in Texas over whether to license the only other two family detention centers in the country run by for-profit prison operators GEO Group and CoreCivic. The companies contracted with ICE in 2014 to open the 600-bed Karnes County Residential Center and 1,400-bed South Texas Family Residential Center after the Obama administration adopted a “detention as deterrence” response to Central Americans seeking asylum at the U.S.-Mexico border.
A Texas judge last year ruled that licensing family detention centers “runs counter to the general objectives of the Texas Human Resources Code.” So this year a GEO Group lobbyist drafted two bills pending in committee that authorize Texas’ Health and Human Services Commission to exempt a family detention center “from any minimum standard or rule applicable to a general residential operation as the executive commissioner determines necessary.”
Meanwhile, a nearly opposite scenario has played out in Pennsylvania, where the state’s DHS has sought to more vigorously follow its Regulatory Compliance Guide, which calls on it “to protect the health, safety and well-being of children receiving care in a child residential facility through the … enforcement of minimum licensing requirements.”
Last January, Matthew Jones, director of the Pennsylvania DHS’ Bureau of Human Services Licensing, notified Berks County Commissioners and the detention center’s director Diane Edwards that it would not renew, and would revoke its certificate of compliance for the Berks Family Residential Center, which has operated since 2001 under a contract with Berks County and has 96 beds.
Jones wrote that Berks was “not operating as a child residential facility” and was instead “a residential center for the detention of immigrant families, including adults.” Like the two Texas family detention centers, children at Berks live with their parents in dorm-style rooms with six beds, or cribs, alongside unrelated adults from other families.
Berks County appealed, and for more than a year the facility operated under a suspended license. Then on April 20, Administrative Law Judge David Dudley sided with the county and ruled DHS “did not provide substantial evidence” for its decision and had “acted arbitrarily and capriciously, responding to outside pressures … instead of regulatory violations.”
Much of the judge’s decision was based on a hearing in November, during which lawyers for the county emphasized a 15-year track record of license approval under the same conditions, and said they would lose money they spent on expanding the facility because they anticipated their request to add new beds would be approved.
“Over a million dollars were spent, and 17 additional employees hired by Berks County,” Judge Dudley wrote in his opinion.
“This decision essentially says Berks has been running like this for so many years and the agency never did anything about it, so it can’t tell them not to do it anymore,” said Jennifer Lee, legal director of Sheller Center for Social Justice at Temple University in Philadelphia. “It’s an incredibly problematic decision for a state agency that exists to protect families and children in these situations.”
Because the order comes from an administrative judge, DHS’ counsel has 15 days to petition for consideration. If DHS Secretary Ted Dallas grants the request, he can uphold or overrule the decision.
DHS confirmed to Rewire that today it filed a petition for reconsideration of the judge’s ruling on the nonrenewal and revocation Berks’ license, which Dallas now has 30 days to consider.
In response to the judge’s critique that DHS succumbed to “outside pressures” by exchanging emails with immigrant rights advocates, the request argues the messages “represent a response to advocates’ legitimate inquiries about the length and conditions” at Berks.
Advocates note it was Dallas that sent the first letter to Berks in 2015 arguing it had changed its operations to serve “refugee immigrant families” and therefore “no longer operates as the type of facility for which it was originally licensed, a child residential facility.”
After Berks County appealed the denial of its child-care license last year, Lee submitted an amicus brief to inform the judge about the health and well-being of the children in detention that was written from the perspective of physicians, psychologists, social workers and nurses. It argued state law prohibits the operation of a facility like Berks because “such a facility is contrary to the best interests of children,” even if for a few weeks.
The brief included several letters from women detained at Berks who described inadequate medical care. One said a 3-year-old vomited blood for four days before he was taken to the hospital, while another mother said her 6-year-old had persistent diarrhea before receiving treatment. Some complained of sleep deprivation and anxiety because guards check on them every 15 minutes at night by shining flashlights in the bedrooms. The Supreme Court has previously recognized that children possess a “peculiar vulnerability” and require a stable and nurturing environment to ensure proper cognitive and emotional development.
The brief also cites Dr. Alan Shapiro, senior medical director for Community Pediatric Programs at the Children’s Hospital at Montefiore in the Bronx, New York, who describes how children he visited at Berks showed “symptoms of behavioral regression” including “oppositional-defiant disorder, depression, anxiety and increased aggression.” Other psychologists have observed how detention can impact health and well-being of parents so significantly as to render them “incapable of parenting.”
Because of the potential impact of detention on children’s well-being, Pennsylvania law bars the detention of children younger than 9, but lawyer Bridget Cambria says she has represented infant clients at Berks who were just weeks old. Even children over age 9 are not supposed to be detained without being found delinquent by a Pennsylvania judge.
As this next phase of the administrative review of Berks’ license begins, advocates are calling on Pennsylvania Gov. Tom Wolf (D) or DHS Secretary Dallas to issue a so-called Emergency Removal Order and relocate the families with their relatives in the United States.
“Even when there is an appeal going on, they have option of shutting down the facility if there is immediate threat of harm to residents there,” said Sundrop Carter, executive director of the Pennsylvania Immigration and Citizenship Coalition, which has a campaign to shut down Berks.
A spokesman for the governor said he won’t comment while the appeal is pending, but noted Wolf has urged federal and state officials to consider community-based options instead of family detention whenever possible.
“It’s great that we have movement that is grounded at the state level to say, the states, under their own laws, do not want to sanction these facilities because they run counter to their own principles of protecting the safety and well-being of children,” Lee told Rewire. “Activists are forced to seek this avenue because the federal government is not listening.”
This story has been updated to include confirmation from DHS that it filed a petition on Friday for reconsideration of the decision regarding Berks’ renewal.