By Matthew Santoni

Law360 (July 9, 2020, 7:45 PM EDT ) A Pennsylvania state court judge said a Berks County detention center for undocumented immigrant families had taken adequate precautions against the spread of COVID-19 and should not be shut down, even after a California federal court described the facility as "on fire" amid the pandemic.

Commonwealth Court Judge Michael H. Wojcik said conditions at the Berks County Residential Center, operated by the Pennsylvania Department of Human Services under contract to U.S. Immigration and Customs Enforcement, were not so dire that the department had to issue an emergency removal order, or ERO — even as a California judge ruled in a separate case that children should be released from Berks and two other detention centers in Texas because of the coronavirus risk.

"The uncontroverted evidence belies petitioners' subjective fears and demonstrates that BCRC has taken steps to mitigate the risk of residents being exposed to or contracting COVID-19," Judge Wojcik wrote Tuesday. "The court finds that the department's decision that an ERO is not warranted is reasonable, and that the department did not act arbitrarily in exercising its discretion."

Even though a California federal judge ruled in late June that ICE had until July 17 to release migrant children who had been detained longer than 20 days, Judge Wojcik's ruling meant the childrens' parents had to remain at Berks for now.

The petitioners had initially asked the Supreme Court of Pennsylvania to order six immigrant families at Berks to be released to local sponsors for the duration of the COVID-19 crisis, saying shared spaces, language barriers and staff who came and went made the detainees "sitting ducks" for contracting the coronavirus.

The Supreme Court denied their "King's Bench" petition in April, but ordered an expedited hearing in the Commonwealth Court. Attorneys for the residents argued to the Commonwealth Court that conditions at Berks warranted an ERO, and that the court should force the U.S. Department of Homeland Security to issue one.

But DHS pointed to two remote inspections, conducted by licensing technician Erin Roman via FaceTime tours and phone interviews, as evidence that the facility was doing what it could to enforce social distancing among detainees, screen employees for symptoms of COVID-19 and promote cleaning and hand-washing around the facility. If a resident tested positive for the coronavirus, the facility had the ability to put that person in isolation in a "negative pressure" room in the medical department that has its own air system to prevent the spread of the virus.

Judge Wojcik agreed with the inspector that conditions at Berks could allow for adequate protections and precautions. The facility had 15 full-time medical staff; other staff and residents were issued masks and had been given increased access to gloves and hand sanitizer, he said.

The facility was big enough for the 13 residents present at the time to be spaced out, with each family getting its own bedroom; shared shower and dining areas were being used by only one family at a time, the judge said.

"The ability to adequately social distance exists at BCRC, and it is incumbent on the residents to follow this practice," the judge wrote. "While the record contains evidence that residents do not always practice social distancing measures or wear their masks, that is inherently by choice and not due to lack of ability."

The judge also said the remedy the petitioners sought, a mandamus order that the department was legally obligated to issue the emergency release, was inappropriate

"Petitioners summarily argue that the department's duty to issue an ERO ... is mandatory and leaves no room for discretion," he wrote. "Whether the conditions at BCRC meet the threshold for issuance of an ERO is a subjective determination within the department's discretion and expertise. Mandamus is simply not the appropriate vehicle or remedy as the department does not have a mandatory duty to issue an ERO."

The inspections showed that DHS had reviewed the facility and exercised its discretion in remaining open, "and the law is well settled that mandamus is not to be used to control the department's discretion," the court's opinion said.

Attorneys representing the detainees said the decision was wrong, pointing to COVID-19 outbreaks at the other two family detention centers affected by the California order, and said they were considering an appeal to the Supreme Court of Pennsylvania. Despite the judge's finding that DHS had properly exercised its own discretion, Pennsylvania Gov. Tom Wolf could still tell the department to issue an ERO, they said.

"This decision couldn't come at a worse time, when COVID-19 cases are rising in the U.S., there have been COVID-19 outbreaks at the other two family detention centers and ICE just started sending new families to the Berks family prison," said Karen Hoffmann of Syrena Law, one of the attorneys representing the detained families, in a statement.

David Bennion of the Free Migration Project, another of the attorneys representing the families, said it was unclear whether the detention center would maintain its current population, since their clients told them at least one additional family had shown up recently, and ICE appeared to be making parents choose between voluntarily keeping their children with them at the facility or letting them be released under the court order — and possibly being permanently separated from them.

Representatives for DHS pointed to Wolf's June 29 statement supporting the end of family detentions at Berks after the California court's ruling, and his hope "that this order marks the beginning of the end of family detention in the United States." DHS said the state had revoked the facility's license to operate as a child detention facility, but it was able to remain in operation while an appeal from Berks County, which holds the contract with ICE, was pending.

The detainees are represented by Karen Hoffmann of Syrena Law, Jacqueline M. Kline of Cambria & Kline PC and David C. Bennion of the Free Migration Project.

The Pennsylvania Department of Human Services is represented in-house by Kenneth J. Serafin, Matthew J. McLees, Edward G. Cherry, Thomas J. Car and Megan A. Rubenstein.

The case is C.N. et al. v. Pennsylvania Department of Human Services, case number 268 MD 2020, in the Commonwealth Court of Pennsylvania.

--Additional reporting by Alyssa Aquino and Suzanne Monyak. Editing by Stephen Berg.

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