After a 16-day hunger strike to pressure the federal government into freeing them, more than two dozen immigrant mothers held with their children in a Berks County detention center learned Monday that their path to asylum might be a dead end.
The 28 women, most from Central America, said they were fleeing violence in their homelands when they entered the United States illegally during the last year, and sought protection.
On Monday, however, the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled that the women, because they came here "surreptitiously," are not entitled to a review of their cases and should be deported.
"They were crying because they know they are stuck," said lawyer Bridget Cambria, who along with co-counsels Jacqueline Kline and Carol Anne Donohoe broke the news to their clients at the Berks Family Residential Center, a 15-year-old facility in Leesport, about 65 miles northwest of Philadelphia.
The ACLU, which represents the women, says the decision will be appealed.
At the heart of the case is the system for determining which immigrants are eligible for asylum. When the plaintiffs came to America from Guatemala, Honduras, and El Salvador, they were interviewed by immigration agents. At the heart of the process is the "credible fear" interview, in which the women spoke of their fears of "persecution" or "torture" if forced to return. Anyone who clears the "credible fear" hurdle is supposed to be given an asylum application.
In this case, none of the women was deemed to have a credible fear. All were ordered deported.
In February, a federal district judge in Philadelphia ruled that the federal courts cannot intervene in such removal decisions. Monday's decision affirmed that.
Five days earlier, on Aug. 24, Sen. Bob Casey (D., Pa.) wrote to Secretary of Homeland Security Jeh Johnson questioning the latter's recent statement that the average stay in family detention is "20 days or less," while some Berks mothers say they have been held a year.
The women and their children, ages 2 to 16, "in many instances have come here from some of the most violent nations on Earth, often escaping rape, murder, and domestic assault," Casey wrote. They "deserve a fair opportunity to seek asylum. They do not deserve to be treated as criminals."
While praising Casey for "not mincing words," Donohoe said: "It is sad that it took a hunger strike for people to listen to the fact that these mothers and kids have been detained for months on end. They could have accepted deportation at any stage. Not accepting goes to the level of fear they feel in returning to their home country. These women have valid claims."
The strikers, calling themselves Madres Berks, or Berks Mothers, stopped eating on Aug. 8 and by Aug. 23 had lost an average of eight to 12 pounds, Cambria said.
That's when officials at the facility, run by Berks County under a contract with U.S. Immigration and Customs Enforcement (ICE), told the women that if they did not resume eating, they could grow so weak that their children would have to be taken from them, said Cambria.
"That was kind of a low blow for women who fled to protect their children," she said.
ICE spokesman Khaalid Walls said ICE does not "does not retaliate in any way against hunger strikers," although it does explain "the negative health effects of not eating."
On Aug. 23, fearing reprisals if they did not start eating, the women began a one-meal-a-day fast to last a week. A decision on how to proceed was pending Tuesday, the lawyers said.
Advocates say the nation's three family detention centers, including two in Texas, have filled up because the federal government is responding to the large number of women and children requesting asylum at the southern border since 2014. The government has implemented what Johnson has called "an aggressive deterrence strategy focused on the removal and repatriation of recent border crossers."
Lee Gelernt, an ACLU lawyer in the federal suit, said he is planning an appeal.
The opinion, he contends, is "contrary to multiple circuit decisions and centuries of Supreme Court precedent holding that noncitizens on U.S. soil are entitled to go to court to challenge their removal."