By Matthew Santoni

Law360 (April 8, 2020, 7:42 PM EDT) -- Pennsylvania's child welfare agency has left immigrant families detained at the Berks County Residential Center "sitting ducks" for the coronavirus pandemic, attorneys for the families told the Supreme Court of Pennsylvania on Wednesday in a petition to have the detainees released.

The attorneys — acting on behalf of six families detained for illegally entering the U.S. from Mexico, Haiti and Ecuador with children ranging in age from 1 to 11 — told the justices that the Pennsylvania Department of Human Services was failing to adequately protect the children in their care under a federal contract with U.S. Immigration and Customs Enforcement.

"Each of the individual petitioners and their young children faces immediate and serious danger to their life or health from the COVID-19 pandemic due to failure of BCRC to implement adequate social distancing and other protective measures and failure of the department to remove them from the facility," the petition said. "The only viable way to protect the children and families at BCRC from COVID-19 is to release them to their sponsors."

Attorneys asked the state Supreme Court to exercise its "King's Bench" power and order the families to be released to their local sponsors for the duration of the COVID-19 crisis, or to speed along a related case in a lower appellate court. They cited other ICE detention centers in Pike and York Counties where detainees had tested positive for the highly contagious respiratory disease.

Conditions at the center made health officials' hygiene and social distancing recommendations for slowing the spread of the virus impossible to follow, the petition said. Detained parents and children live, bathe, cook and eat in shared areas on two floors of a single building, and they sleep six to a room where beds are "placed less than half a meter apart," the petition said.

"Food preparation and service is communal with little opportunity for surface disinfection … The entire detained population at Berks as well as the staff eat together at the same time in the cafeteria during mealtime," the petition said. "The areas where they eat create dangerous situations for the spread of COVID-19."

The families said they did not have access to masks for all their children or working soap dispensers in every room, and BCRC had not provided them any education on how to reduce the risk of contracting or spreading the virus beyond what the detainees had seen on television news.

Employees, ICE staff and medical providers come and go between BCRC and other facilities or their homes, increasing the risk of bringing disease into the facility or spreading it from there, the petition said.

Families said some detainees and staff were already exhibiting coughs, congestion and fevers. While not everyone who contracts COVID-19 suffers severe flu-like symptoms or difficulty breathing, the petition said that the children were at particular risk of the disease having more serious effects on them.

"While older individuals face greater chances of serious illness or death from COVID-19, it is now known that the younger population is just as susceptible to contracting the virus and also faces serious threat to life and health," the petition said. "Even when asymptomatic, these younger individuals still pose a very serious risk of transmission to those with whom they come in contact, including older, more vulnerable adults."

The petition noted that the department had already revoked the center's state license in 2016 because it housed children and adults together in violation of Pennsylvania's definition of a "child residential facility." But it had kept operating under year-to-year stipulations that it could remain open under its expired license.

But under a 2020 settlement agreement in the California federal court case of Flores v. Barr, children being held in immigration detention must be in unsecured, licensed facilities, and the petitioners argued that Berks met neither of those criteria. That meant Pennsylvania law took precedence, and the state's highest court could issue an order without conflicting with any federal law, the attorneys argued.

Representatives of the Department of Human Services previously said that unilaterally shutting down BCRC could cause an "immediate threat to health and safety," and the Supreme Court had cited similar concerns as reasons for denying two other petitions earlier in the month seeking the release of prisoners from county jails and juvenile detention centers. But the Berks families' attorneys said that as ICE detainees, the families at BCRC were different.

"Neither of these concerns is relevant to BCRC, which presents a limited population at a single facility, all of whom are being held in civil immigration detention," a footnote said. "There are no victims of crimes to consider in this context, and the detained families do not present any threat to public safety."

The petition claimed that the Department of Human Services had taken no action or not enough action to address the risk of the novel coronavirus striking BCRC, and it said it was unclear whether the department was doing any monitoring or testing of the children and families detained there.

"COVID-19 is spreading like wildfire through ICE detention centers in Pennsylvania, and the families are trapped at Berks while the state looks the other way," said Jacquelyn Kline of ALDEA, one of the legal aid organizations representing the families, in a statement. "Governor [Tom] Wolf needs to take emergency action to ensure that these children are protected during this health crisis."

Representatives of the Department of Human Services did not immediately respond to requests for comment Wednesday.

The families at BCRC are represented by Karen Hoffmann of Syrena Law, David C. Bennion of the Free Migration Project, Bridget Cambria and Jacquelyn Kline of ALDEA, and Carol Anne Donohoe.

The Department of Human Services is represented by Kenneth J. Serafin of the Office of General Counsel.

The case is C.N. et al. v. Pennsylvania Department of Human Services, case number 76 MM 2020, in the Supreme Court of Pennsylvania.

--Editing by Haylee Pearl.

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