Trump: ‘The asylum program is a scam’
“Stand up and raise your right hand,” Judge William Riggs said.
He looks expectantly at a Central American man in front of him, who’s wearing headphones to listen to the Spanish interpreter to the left of Riggs. Before she finishes translating, Riggs raises his own right hand to demonstrate the action.
After the man takes an oath, a baby, in the wooden benches designated for observers, starts whining. The mother bounces her knees up and down, attempting to soothe the child.
The immigrant’s lawyer explains his claim, and at one point, Riggs rests his chin in his hand.
It’s about 9 a.m., and this is the first of dozens of asylum cases he’ll hear that day. Once the lawyers finish, he either assigns a later individual hearing or orders the respondent removed from the country.
All of this takes place in Charlotte’s immigration court, located in a mundane office building in east Charlotte. There isn’t a sign outside to identify it, and once inside, you have to take a rickety elevator to the fourth floor — just three floors above an immigration law firm.
That’s where anyone in the Carolinas has to go to claim asylum, and its four judges are some of the strictest in the country.
Federal immigration judges in Charlotte denied asylum in 88% of cases from 2013 through 2018, according to data from Syracuse University’s nonpartisan Transactional Records Access Clearinghouse Immigration Project. That ranks Charlotte 12th of the 54 cities with federal courts.
Charlotte’s four judges — Stuart Couch, Rodger Harris, Theresa Holmes-Simmons and William Riggs — ruled on 1,954 cases that advanced beyond an initial hearing during that time period.
On average, judges nationwide denied immigration asylum in 56% of cases in that same time period. Denial rates ranged from 95.8% in Chaparral, New Mexico to 20% in New York. There is even variation between Charlotte’s own judges — Judge Couch has a 92% denial rate while Judge Holmes-Simmons is at 80%.
Charlotte-based Advocates for Immigrant Rights started a court observation program in February to find out what’s behind the numbers.
A person seeking asylum is either unwilling or unable to return to their home country due to past persecution or fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group or political opinion,” according to the Refugee Act of 1980. That’s where a lot of immigration judges differ.
“We have judges that are just deeply skeptical of the idea of asylum because of persecution by criminal entities, regardless of how pervasive, how violent, how quasi-governmental they might be in an area,” said Maureen Abell, a staff attorney at the Charlotte Center for Legal Advocacy.
Ira Mehlman, a spokesman for the Federation for Immigration Reform, an organization that supports reduced immigration, said the “vast majority” of asylum seekers don’t meet the necessary criteria.
“One of the reasons that you’re seeing such high rates of denial is you have so many people filing bogus asylum claims,” Mehlman said, adding that domestic violence and economic hardship fall “far beyond the scope” of political persecution.
Katrina Braun, an immigration legal fellow at the ACLU of North Carolina, said while interpretations can vary judge-to-judge, the denial rate in Charlotte is alarming.
“We don’t have any reason to think that the cases in Charlotte are substantively different from those that are going through courts elsewhere in the country,” she said.
Kelly Nance, a regional spokesperson for the Executive Office of Immigration Review, which oversees immigration courts, said judges are not allowed to talk to media, but the office takes claims of “unjustified and significant anomalies in immigration judge decision-making” seriously. She declined to address specific questions about the court’s rate granting asylum.
How asylum works
A person can apply for asylum one of two ways: affirmatively or defensively. The main difference between the two is that a defensive asylum claim is made when someone is already in removal proceedings. Defensive asylum applicants have to go through immigration court, while affirmative applicants go through an interview and have to provide their own interpreter.
Before the process can begin, applicants have to prove they have a credible fear of being persecuted if they return to their home country. Then they get sent to immigration court.
Asylum seekers have the right to remain in the United States while their applications are being processed. For cases going through immigration court, applicants must first have a master hearing, which lays out the facts of each individual case — usually explaining why that person is applying for asylum and verifying that they entered the country illegally and are subject to deportation. Then, the judge gives the applicant a later court date to try their claim. Applicants who are denied asylum are issued orders of deportation, which they can appeal.
The whole process can take several months or even years.
A quota issued by former attorney general Jeff Sessions last fall attempted to address the national backlog that immigration courts face — each judge must complete 700 cases this year. As of May, Charlotte’s court has almost 17,000 pending cases.
Master hearings take minutes to complete, but subsequent hearings normally last for about three hours.
Charlotte immigration attorney Ben Snyder said the quota has pressured judges to try to hear up to four cases in the three-hour period.
“They’re trying to run through these things as quick as they can,” Snyder said. “You might only get an hour or a half hour for your hearing... If you’re unrepresented — or even if you are represented, you could get railroaded.”
Because of Charlotte’s reputation as being a stricter court, lawyers in the area don’t want to take on these cases, he said.
Changing asylum law
Although the results of hearings are largely dependent on judges’ interpretations of cases’ evidence and facts, the recent — and rapid — changes in asylum law have also had an impact.
Unlike federal court, which is under the judicial branch, immigration court falls under the executive branch. Immigration court judges and the Board of Immigration Appeals answer to the Department of Justice, which means the U.S. attorney general can determine the outcome of appeals cases.
This is a privilege that attorneys general in the Trump administration have used frequently. At least 17 Board of Immigrations Appeals decisions have been overturned by an attorney general getting involved in the case since the beginning of the Trump administration . In comparison, interventions like this only happened four times over Barack Obama’s two-term presidency, federal records show.
Last summer, Sessions determined that domestic violence was no longer a reason to qualify for asylum. This overruled a 2014 landmark decision by the BOIA and drastically altered the country’s asylum law.
Most of Charlotte’s applicants are from Central America, where violence rises by the hour, so the court’s judges see a lot of these cases. Honduras alone has the highest rate of femicide in the world, according to the United Nations.
The advocacy group
A Spanish-speaking woman walked into the stuffy, carpeted room that is Charlotte’s immigration court, and sat down in front of Judge Barry Pettinato, who has since retired. The chair beside her, meant for legal counsel, was empty.
After stating the woman’s case number and naming the lawyers and interpreter, he asked the woman to approach the stand to provide her asylum application. It was in English.
“Who translated this?” he asked through the interpreter, after realizing that the spot for a translator’s signature was blank.
The woman explained that she used Google Translate.
Pettinato told her to come back when she had a translator’s signature.
Snyder said these “technical refusals” were one of the main reasons that court observing programs, like Advocates for Immigrant Rights, started.
Emily Stephenson-Green, one of AIR’s founders, has a background with the Charlotte Women’s March. She said the group decided to focus on court observation because that’s where they thought they could make the most difference.
The organization has about 40 active members that observe master calendar hearings at Charlotte’s immigration court. Master hearings — the immigration court’s equivalent of an arraignment — typically last no longer than 10 minutes, but AIR volunteers observe them to make sure due process is executed correctly.
Abell and others train volunteers so they know what to expect when they arrive in court. The training ranges from telling observers not to use their phones to preparing them for the legal jargon they might hear, Stephenson-Green said.
Without knowing this information, observers could leave the court more confused than when they arrived, she said.
While observers are in the courtroom, they take notes and report back to AIR, Stephenson-Green said. The group is trying to keep track of its own data, and observers watch the conduct of the lawyers and judges closely. Observers are told not to speak during court because they don’t want to get kicked out, and they don’t want respondents to think they’re getting advice from a lawyer.
Impacting the process
“My babysitter’s here.”
Brian Kridler said one of Charlotte’s judges said that to him after a session he observed — one of over 60 during the last few months as an AIR volunteer.
He got involved because he wanted to learn more about what happens in the court, he said.
Stephenson-Green said observers can tell right away if a respondent knows their rights.
Immigration court is a civil proceeding, which means respondents aren’t entitled to a lawyer like in criminal court. If someone can’t pay for a lawyer, they have to go without one.
“Many people have language barriers,” Braun, immigration fellow at the NC ACLU, said. “They face serious trauma (and) many other issues, and they’re being forced to navigate this very complicated system without any kind of guidance if they don’t have some money to pay for a lawyer, which many people do not.”
Lacking this access to representation makes it difficult to have one’s claim heard fairly, she said.
Stephenson-Green said it’s difficult for their small group to track respondents’ cases through the court because they often take years, so they can’t say if observation affects asylum denial rates. But they have heard from lawyers who have noticed a change.
“Most of our understanding is anecdotal from the attorneys that have said judges’ behaviors are different with observers in the room,” she said, adding that they are more polite to respondents.
Now, AIR is focusing on some more big picture issues, like reopening the pro bono room at the court, which closed after the government shutdown this year.
Kridler has gotten to know the judges over the course of his observations, and he said sometimes he’ll talk to them during breaks.
“I talked to them about the difficulties they may have in interpreting the law as it’s been changed over the years, and they try to talk to me about the importance of being fair and following the law,” he said. “They interpret laws, and they judge cases.”