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Opponents of the Berks County migrant detention center are trying a new way to shut it down

The families say they’ve suffered physical and psychological harm at Berks, after fleeing persecution in Central America and surviving a dangerous journey to the United States.

A group of protesters gathered outside of Gov. Tom Wolf's Philadelphia office in 2018 to call for the closure of the Berks County migrant detention center. Demands to shutter the center continue.
A group of protesters gathered outside of Gov. Tom Wolf's Philadelphia office in 2018 to call for the closure of the Berks County migrant detention center. Demands to shutter the center continue.Read moreHEATHER KHALIFA / Staff Photographer

A coalition of Pennsylvania immigrant-justice groups has sued to shutter the Berks County detention center — but not by attacking the federal authorities who confine families there.

Instead, the groups filed against the administration of a putative ally, Gov. Tom Wolf, who has often stated his desire to end family incarceration in the state.

The lawsuit asserts that once the state Department of Human Services revoked Berks’ license in 2016, it had no authority to let the center continue to operate during an appeal. For four years, U.S. Immigration and Customs Enforcement has confined men, women, and children at a facility that has no current, valid license, the suit said.

The groups ask Commonwealth Court to make DHS rescind its legal stipulations that allow Berks to operate, which they say would leave the center without state permission to function.

“This lawsuit will help expose the hypocrisy of the governor’s position,” said David Bennion, a Philadelphia immigration attorney and the executive director of the Free Migration Project, which promotes freedom of movement as a basic human right. “His public position is that he wants Berks to be closed, but he has refused to take steps within his power to actually shut it down.”

DHS spokesperson Erin James said the agency cannot comment on pending litigation.

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Wolf has called the detention of families at Berks immoral, inhumane, and wrong but says his administration lacks power to act — the center operates under a contract between the county and the federal government. His administration has rejected demands to evacuate families via an emergency removal order, saying that can be done only upon a finding of immediate and serious danger to life or health.

DHS has said that as long as the agency retains power to inspect the center, it can ensure it is safe and providing proper care. A removal order would not free families from federal custody but would end the department’s ability to monitor conditions, the agency has said.

“I am happy to keep looking for things I can do to shut it down, but I haven’t been able to come up with anything at this point,” Wolf said last year.

On Thursday in Center City, activists plan to rally outside the DHS branch office, marking the four-year anniversary and again calling for the center’s closure.

The suit was filed against the DHS and Secretary Teresa Miller by attorneys and organizations including the Free Migration Project, the Sheller Center for Social Justice at Temple University Law School, and ALDEA — The People’s Justice Center.

“We feel we do have a sympathetic partner at the state level, but they’re not pushing in ways that they could be,” said Jennifer Lee, who directs the Social Justice Lawyering Clinic at the Sheller Center. “They should be taking a stand.”

The complainants in the suit are two migrant families, both seeking asylum, a legal means of staying in the United States.

One family is a father and 9-year-old daughter from Honduras, held at Berks since September 2019. The other is a mother and 18-year-old son from El Salvador who were confined between 2015 and 2017.

Both families say they’ve suffered physical and psychological harm at Berks.

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The case filings include a 2015 letter from the American Academy of Pediatrics, which warned that families fleeing Central America suffer high rates of trauma — death threats, physical harm, sexual abuse — and that their subsequent detention is associated with mental-health problems and suicide risk.

Across the U.S., the incarceration of migrant children, with or without their parents, is driving an emotional national debate over immigration. The Berks center has become a focal point in Pennsylvania.

Berks is one of three places in the country where the government confines migrant families, a 96-bed lockup set about 75 miles northwest of Philadelphia. Generally, families at Berks are seeking asylum.

Critics deride the center as a “baby jail.”

ICE officials describe Berks as “effective and humane,” with play rooms, educational services, and access to legal counsel and medical care.

» READ MORE: A Mexican boy turned 18 at the Berks detention center. His birthday meant handcuffs.

Advocates say they’re suing DHS because of its "failure to protect children” despite “its own recognition that the facility does not meet the requirements for a state license.”

In 2016, DHS revoked Berks’ 2016-17 license for failure to meet requirements for child facilities under state law, the suit stated. Specifically, the state found the center was not operating as a child-residential facility but as a place for the detention of migrant families, including adults, according to legal filings.

Because state licenses for child facilities are only valid for one year, Berks applied for new licenses for 2017-18 and 2018-19. DHS neither granted nor denied them, the suit noted. When Berks County sued for a response, DHS “stipulated” that the center could operate without a license while it appealed, the suit said.

But for those held at Berks, the suit said, that has the same effect as the issuance of a license.

“DHS has the duty to grant or deny each one-year license application," the suit said. "DHS has chosen to circumvent this duty.”