Berks detention center for immigrant mothers and children wins licensing appeal

A Berks County center where mothers and their children are incarcerated while seeking asylum lost its operating license 15 months ago, but an administrative law judge has upended the revocation by the Pennsylvania Department of Human Services, calling it "arbitrary ... capricious [and] unsupportable on any rational basis."

The April 20 ruling by Judge David Dudley is the latest development in the high-profile battle over the future of the Berks County Residential Center (BCRC), a low-security lock-up in Leesport, 75 miles northwest of Philadelphia. The facility had remained open despite the loss of its license.

Lawyers and advocates for the immigrant families contend it is a physically and psychologically harmful environment for children. They want it closed down.

U.S. Immigration and Customs Enforcement, which has a contract with the county to house prisoners there, says it is a humane alternative for keeping families together while they await immigration court decisions.

Although the center's inmate population fluctuates, it now houses about 20 women and 20 children ages 2 to 16, according to lawyers who represent them.

Opened in 2001, the 96-bed center is the oldest and smallest of the nation's three detention centers for parents, generally mothers, and their children, who slip into the United States without papers. The other two centers, which are in Texas, have a combined capacity of 3,000. Critics of family detention say the women and children could just as easily be released on bail, or placed under monitoring supervision, to ensure they report to court for their immigration cases.

For years, the operating license of the Berks facility was routinely renewed. In January 2016, however, after advocates for the families pointed out an apparent discrepancy between what the license authorizes and what actually occurs at the center, the state Department of Human Services (DHS) revoked it for "non-compliance," saying the license permits only "residential treatment for delinquent children," not imprisonment of foreign families seeking U.S. protection.

Lawyers for Berks County appealed that decision, and the center was allowed to continue operating, "status quo," while the appeal was pending. A day-long hearing was held last November.

In his 17-page ruling, Dudley cited "outside pressures," including letters to Gov. Wolf and DHS Secretary Ted Dallas calling for the center to be closed, and concluded that the department's decision to lift the license was based on those pressures, not regulatory violations.

"There is no dispute that the Department was completely aware that BCRC was operating as a family immigration program facility during the entire existence of its operation," Dudley wrote.

He noted that the license renewal request was accompanied by BCRC's request for approval to open its fourth floor and expand to 192 beds.

According to the hearing record, the department advised BCRC that the fourth floor would have to be "move-in-ready" before it would approve the capacity increase.

"Over a million dollars were spent, and 17 additional employees hired by Berks County, which never would have been authorized," noted Dudley, "if the Department would have questioned BCRC's ability to operate the facility as it had for the past several years."

By law, DHS chief Dallas has the authority to overrule the administrative law judge's decision. The parties have 15 days to request reconsideration. Rachel Kostelac, a DHS spokeswoman, said Monday that the department is weighing its options.

Meanwhile, advocates for the Berks mothers and children plan to flood Gov. Wolf's office with calls Wednesday urging him to act.

Last October, a spokesman for the governor said, "The Wolf Administration has repeatedly urged the U.S. Departments of Homeland Security and Health and Human Services to consider community-based options to serve these families whenever possible. Child mental health experts, court rulings and previous federal policy all support the principle that these children should be served in a non-secure setting."

After that, Wolf deferred any direct action while the county's administrative appeal was pending.

"Now it's his turn," said Sundrop Carter, executive director of the Pennsylvania Immigration and Citizenship Coalition (PICC), a statewide advocacy group.

A memo on PICC's web site, under the heading "Shut Down Berks Toolkit," outlines what the advocates say are Wolf's legal options, including an emergency removal order to relocate the inmates.

PICC members say they will present a copy of that memo at the governor's office in Harrisburg Wednesday.