CHARLOTTE — Toward the end of a recent morning hearing in immigration court, Judge V. Stuart Couch looked out from his bench on a nearly empty chamber. On one side sat the prosecutor. But at the table for the immigrants, the chairs were vacant.
The scene is replaying across the country as immigration courts resolve the asylum cases of families who streamed across the Southwest border since 2014. Tens of thousands of families from El Salvador, Honduras and Guatemala, and some from Mexico, came here citing their need for protection from predatory gangs and criminal violence. Now, they face the prospect of being sent back to countries they fear have not become any less dangerous.
Of nearly 100,000 parents and children who have come before the courts since 2014, most asking for refuge, judges have issued rulings in at least 32,500 cases, court records show. The majority — 70 percent — ended with deportation orders in absentia, pronounced by judges to empty courtrooms.
Their cases are failing just as President Trump is rapidly expanding deportations.
Immigration courts have long had high rates of in absentia rulings, with one-quarter of all cases resolved by such decisions last year. But the rate for families who came in the border surge stands out as far higher, according to the Justice Department office that runs the immigration courts and tracked the cases of those families over the past three years.
Many immigrants did not understand what they were supposed to do to pursue their claims and could not connect with lawyers to guide them. Some just stayed away, fearing they could be deported directly from courthouses and choosing instead to take their chances in the immigration underground.
New cohort of fugitives
As a result, migrants from the surge are faring worse in the courts than other groups. By late January, the courts had granted asylum or otherwise allowed migrants to remain legally in this country in 3,792, or 11 percent, of those cases involving families, the figures show. By contrast, in all asylum cases last year, 43 percent ended in approvals.
The large-scale failure of the families’ claims is the final unraveling of President Barack Obama’s strategy to deal with the asylum seekers.
Unlike most illegal border crossers, who can generally be swiftly deported, many recent migrants from Central America asserted that they had strong reasons for seeking protection in the United States. Rather than dodging the Border Patrol, they turned themselves in, saying they were afraid to return home. Under U.S. law, that starts an asylum proceeding in which courts evaluate claims that migrants faced dangerous persecution.
When the surge began in 2014, Obama administration officials, worried they could spur an even greater flow if they accepted the migrants as refugees, tried to detain them near the border and deport them. But federal courts curtailed the detention of children and their parents, and so the Obama administration funneled them into immigration courts to ask for asylum. Families and unaccompanied minors who passed a first stage of screening at the border were released to pursue their cases in courts around the country.
In many of those cases, judges in the overburdened courts are only now rendering their decisions — and families from the Central American surge are becoming a new cohort of immigrant fugitives.
In the past, an order of removal — the immigration equivalent of an arrest warrant — did not necessarily lead to swift expulsion. But the Trump administration has made it clear that anyone on the wrong side of immigration law can be tracked down and deported, whether or not they committed a serious crime.
‘Don’t stop in Charlotte!’
The fates of the asylum-seeking families are particularly stark in Charlotte. Three immigration judges, appointed by the U.S. attorney general, labor under a backlog of nearly 8,000 cases. The court, which covers both Carolinas, has an amply earned reputation as one of the toughest in which to win an asylum case.
María Arita discovered these realities only after she left Honduras in 2013, forded the Rio Grande in south Texas with her 3-year-old son, turned herself in to border authorities and was sent to Charlotte to join her husband, who had found work here after coming illegally a year earlier. She said a mara — a criminal gang — had taken a dislike to her husband, for reasons the family still does not fully understand. But the gang made its animus very clear.
“First they killed my brother-in-law,” Arita said, trying to remember the attacks in the correct order. “Then they killed my father-in-law. Then . . . they shot another brother-in-law. That’s when my husband realized he had to get out, and he left for the United States. Then they broke down the door of my house. I wasn’t home, but they left a message saying they were going to kidnap my son to make my husband come back.”
Unlike many asylum seekers in this region, Arita found a lawyer. But after she paid several thousand dollars in legal fees, she said, he dropped her case. Despite her family’s trail of death in Honduras, he told her, she wasn’t going to win in Charlotte.
Terrified of going back, she went by herself to a hearing this spring. Before it was over, the judge had denied her claim and given her a few weeks to pack up, take her son and leave the United States. Results like that are among many reasons immigrants nationwide have been failing to appear in court.
Some migrants came to this country more to escape poverty than violence, and they may have avoided court because they knew their asylum claims were likely to be rejected. But more than 85 percent of the families passed the first legal test for asylum, in which they had to show they had a “credible fear” of returning home, according to Department of Homeland Security figures.
For many of them, the law itself presents a problem. Migrants running from gangs do not easily fit into the classic categories for asylum, which offers protection to people fearing persecution based on race, religion, nationality or politics. Yet in some courts, artful lawyers have won for people from Central America by crafting cases to fit a fifth, more loosely defined category of persecution in the law, against members of a “particular social group.” In recent years, migrant women have also won if they were escaping extreme domestic violence.
But not in Charlotte. Couch and Barry Pettinato — two out of three judges on the bench — have made it clear they view asylum as a narrow opportunity, and they regard claims stemming from gang violence as inconsistent with the letter of the law. Couch has scolded lawyers for trying to bend the statute like “silly putty” to make it work for Central American migrants.
Couch grants asylum in 18 percent of the cases he hears, while Pettinato grants 15 percent, both less than half the national rate, according to an analysis of court records by the Transactional Records Access Clearinghouse (TRAC), a data research group at Syracuse University. As sitting judges, Couch and Pettinato were not able to comment on their rulings.
“We should set up billboards on the highway for people coming from the border. Keep going, don’t stop in Charlotte!” said Viridiana Martínez, who works with Alerta Migratoria, a group in Durham, N.C., that helps immigrants fight deportation.
Mundane obstacles
Without a lawyer, the chances for an asylum seeker to prevail in court here are close to zero. There is no right to government-paid counsel in immigration court. And few low-cost lawyers practice in the region; in South Carolina, not a single agency is offering free legal assistance for asylum. On a list of volunteer lawyers the judges hand out in court, sternly advising immigrants to call them, none had been practicing in the Carolinas for at least three years.
The likelihood that immigrants will show up for hearings increases exponentially when they have lawyers, TRAC figures show. But many lawyers practicing in Charlotte, who have to charge at least $5,000 for all the work involved in an asylum case, have discouraged immigrants from hiring them by being candid at the outset about their chances to win.
One immigrant from Guatemala said he consulted four lawyers who declined to take his case. The man, who spoke on the condition of anonymity because his claim is still before the court, said he fled after a gang hunted him from village to village, trying to kill him to take money he had saved from his taco stand to pay doctors for a chronically ill son. He said the lawyers told him: “Your case is not big enough. You better go back to your country.” Finally, he found one lawyer, Evelyn Smallwood, willing to give it a try.
“Negativity permeates the community,” Smallwood said. “People talk among themselves. ‘I got the meanest judge; I shouldn’t go to court.’ They just feel the outcome is the same if they do go to court and if they don’t.”
Amid constant talk on the street of deportations, rumors swirl that agents from U.S. Immigration and Customs Enforcement, known as ICE, are waiting at the door of the court to arrest anyone whose claim is denied — rumors that so far have proved false.
Some obstacles that stop immigrants from attending hearings are mundane. Immigration courts still operate on an antiquated paper filing system. With harried clerks juggling thousands of files, errors occur, and notices go out to wrong addresses.
At one hearing in June, Pettinato was about to order the deportation of a Honduran, Juan José Peña, for failing to appear. Just in time, Peña bounded into the courtroom, breathless and apologizing. Because he was living in South Carolina, he said, he had been confused and gone mistakenly that morning to a courthouse in Charleston.
In a closet-size office near the court entrance, a volunteer offers a 10-minute orientation that is the closest many immigrants will come to getting legal advice. Kathryn Coiner-Collier, who works for Legal Services of Southern Piedmont, is not a lawyer but does what she can to warn people what awaits them. “If you go in there without an attorney, you will have to know the law just like the judge,” she says.
‘I’m pretty desperate’
On a recent day, Miriam Cruz Oliva, from Mexico, told Pettinato she had consulted several lawyers but none would take her case. She said she tried to fill out an asylum application but could not understand it.
“They charged me $100 for a consultation and told me to fill it out myself,” she said in Spanish through a court interpreter, starting to cry. “It’s a lot of money.”
“If you can’t pay for an attorney and you can’t find anyone to help you, why should I give you any more time?” Pettinato asked.
“I’m pretty desperate,” Cruz said. The judge gave her three weeks before a final hearing.
Couch runs a strict courtroom. Some years ago, he urged the disbarment of several attorneys for bringing what he saw as frivolous asylum cases, a decision that was upheld by disciplinary authorities. He requires asylum seekers to include a statement of their legal argument when they first submit their application — even those who have no lawyer. In a recent hearing, he rejected an application from a young lawyer because it did not have an index in the style specified in the practice manual.
Couch dressed him down before the crowded court. “I can’t practice law for you,” he said.
“We all know we are going to be yelled at and belittled by the judges in this court,” said Joanna Gaughan, a lawyer who came to Charlotte four years ago. “A lot of lawyers just don’t feel like putting themselves in that line of fire for an asylum case.”
Gaughan and other lawyers have begun to press cases anyway, hoping to lay groundwork for appeals. “I really believe the judges are not always applying the case law correctly,” she said.
One case that lawyers brought back from the brink was María Arita’s. Just as she despaired, a lawyer, Atenas Burrola, won asylum for one of her husband’s brothers. With only days to spare, Burrola succeeded in getting Arita’s deportation postponed.
The anguish
But for many immigrants, there is an anguished choice between going to court or laying low and taking the odds of an in absentia order. Ana Karen Torres Martínez, a 27-year-old mother from Mexico, approached American agents at a south Texas border crossing in April 2016, begging for help. A woman with links to a Mexican drug cartel had stolen her toddler daughter, she said. Reporting the abduction to Mexican police had made things worse. She herself was kidnapped for two weeks by the traffickers, with scars to show for a pistol-whipping they administered.
When she continued her search, police drove her in a patrol car to a rendezvous with the traffickers, who leveled a gun at her temple while handing a fistful of cash to the officers. “They told me if I didn’t stop stirring the water, I should know what would happen to me,” Torres said. She worried if she kept pressing, they would kill her daughter. But Torres has not been able to hire a lawyer. A work permit she applied for, a benefit provided under the law to asylum seekers, has not yet come through.
“I know we have to go to court,” she said. “We have to give the judge reasons to believe us. But what does the judge want? I can’t work legally, so how am I supposed to pay a lawyer?”
The recent deportation orders may not lead immediately to a wave of deportations, ICE officials said, because they are plowing through the backlog looking for fugitives who also committed crimes. According to official records, more than 960,000 deportation orders are on file waiting to be carried out, many dating back years.
But Jennifer Elzea, a spokeswoman for ICE, said agents could carry out the in absentia orders, which include most recent addresses for the immigrants, at any time. ICE no longer makes exceptions for families with no crimes.
“All those in violation of the immigration laws,” she said, “may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States.”
This article was written for the Marshall Project, a nonprofit news organization that covers the U.S. criminal-justice system.
Clarification: An earlier version of this article reported that Judge Stuart Couch urged the disbarment of several attorneys for bringing “what he saw as frivolous asylum cases.” Couch’s criticism was subsequently backed by court disciplinary authorities. Two lawyers were barred from practicing in immigration courts and one was fully disbarred in the state for unethical conduct injurious to the interests of their clients. The article has been updated.
