Pa. Justices Decline Immigrant Families' COVID-19 Release

By Matthew Santoni
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Law360 (April 17, 2020, 4:59 PM EDT) -- The Supreme Court of Pennsylvania rejected a call to release immigrant families from the Berks County Residential Center to reduce their chances of contracting COVID-19 on Thursday, but left open the possibility that their case could be heard by a lower court.

The justices denied a petition to use their "King's Bench" powers to order the release of six immigrant families that the Pennsylvania Department of Human Services was holding at the facility under a federal contract with U.S. Immigration and Customs Enforcement, but they granted the families' alternative motion to order the Commonwealth Court to hear their case in a speedy fashion if and when the families refile it.

"If an action is filed in the Commonwealth Court, either in its original jurisdiction or as an appeal from an administrative agency ... this court directs that the Commonwealth Court shall establish an expedited schedule for such matter and shall move expeditiously to resolve the matter so as to prevent further potential harm to petitioners," the Supreme Court's order said.

The petitioners want the Department of Human Services to release the families being held at Berks to local sponsors for the duration of the coronavirus crisis, arguing that the close quarters and other conditions at the facility made detainees "sitting ducks" for the contagious coronavirus.

David C. Bennion of the Free Migration Project, one of the attorneys representing the families, said Friday he was disappointed in the ruling but that advocates were likely to refile the case in Commonwealth Court as soon as possible. He said the Supreme Court's brief order did not touch on any of the merits of the case or the jurisdictional arguments the petitioners made, but the order to expedite any lower court action appeared to show the justices were aware of the urgency of the petition.

"The court acknowledges it is an urgent issue, that the children's health is at issue and it's an emergency," Bennion said. "The schools are closed, but these children are, in effect, locked up at their school 24 hours a day, seven days a week."

"All DHS-licensed facilities have been instructed to closely follow CDC and [Department of Health] recommendations to mitigate the spread of COVID-19," a Department of Human Services representative said in a statement. "We continue to work closely with all ... facilities as the public health crisis progresses."

Their petition said conditions at the center made health officials' hygiene and social distancing recommendations for slowing the spread of the virus impossible to follow. 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.

Families at the center said they did not have access to masks for all their children or working soap dispensers in every room, and they had not gotten any education on how to prevent or slow the spread of the virus except what they saw on television. Meanwhile, employees, ICE staff and medical providers who came and went from the facility ran the risk of introducing the virus, if it was not already present among the families and staff who were exhibiting symptoms such as coughs and fever, the petition said.

Thursday's Supreme Court order said the justices would use their supervisory authority over the state's courts to hurry any lower court's handling of the families' request for release.

Earlier in April, the Supreme Court had rejected pleas to grant broad, statewide releases of detainees from county jails or juvenile detention centers, instead ordering county-by-county reviews to see if facilities were complying with CDC guidelines for preventing COVID-19. Lawsuits followed that said conditions were still unsafe at the Allegheny County Jail in Pittsburgh and the Federal Detention Center in Philadelphia.

The families are represented by Karen Hoffmann of Syrena Law, David C. Bennion of the Free Migration Project, Bridget Cambria and Jacquelyn Kline of Aldea — The People's Justice Center, and Carol Anne Donohoe.

The Department of Human Services is represented by Kenneth J. Serafin, Edward G. Cherry and Matthew J. McLees of the Pennsylvania 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 Adam LoBelia.

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