In 2016, an immigration judge in Charlotte threatened a 2-year-old child in his courtroom with a dog attack if the child did not stop making noise. While a Spanish interpreter translated, Judge V. Stuart Couch repeatedly yelled at the boy that, “I have a very big dog in my office, and if you don’t be quiet, he will come out and bite you!” Eventually, the judge had the crying child removed from the courtroom, leaving the child’s mother behind to make the case to Couch that she and her son should be allowed to stay in the country.

Rather than be held accountable for his abhorrent treatment of a child in his courtroom, last month Judge Couch was promoted to the Board of Immigration Appeals (BIA), the body of judges that hears appeals from immigration courts and often has the final say over whether people can stay in the United States.

Here in North Carolina, people in immigration court face staggering denial rates.  Judges in the Charlotte immigration court where Couch worked -- the only immigration court in North Carolina -- ordered the deportation of about 87% of all people who appeared before them in fiscal year 2019, compared to the projected nationwide average of 64%.  Judge Couch himself granted an especially small percentage of asylum applications submitted to him: he allowed less than 8% of people seeking asylum to stay in the U.S., compared to an average of 45% for immigration judges nationwide.

Judge Couch’s high rate of deportation orders is far from an anomaly among immigration judges promoted by the Trump administration. The administration recently expanded the BIA’s membership from 17 to 21 judges and filled all of the new spots and vacancies with judges who approve fewer than 20% of asylum applications, less than half the national average.

At least two of the other five new appointees to the BIA have been the subject of official complaints alleging that they engaged in improper conduct, including denying proper interpretation services to people appearing before them. One of the new appointees is the judge who ordered the erroneous and illegal deportation of Mark Lyttle, a U.S. citizen with mental disabilities born and raised in North Carolina.

This recent set of appointments highlights broader concerns about U.S. immigration courts.  Many different kinds of people appear before these courts, from people fleeing recent persecution to those who have lived in local communities for many years. Some are applying for a legal way to stay in the country. Others are there to prove they already have a valid visa or are actually U.S. citizens.  What they all have in common is that a trained government lawyer is arguing that they should be deported.

But immigration courts are administrative courts, which means that people appearing before them do not have the same procedural protections as people in criminal court do. Immigrants facing deportation, including children, do not have access to attorneys if they cannot pay for them, which most cannot. People who live in smaller cities or are incarcerated in government facilities have an especially difficult time accessing legal help. Immigration law is very complicated for anyone, but navigating the system can be especially difficult for people who do not speak English as a first language and who may have experienced extreme trauma in their home countries or in transit.  The 37% of people who do find lawyers for their immigration court cases are many times more likely to not only be able to stay in the country but to raise any kind of legal defense to their deportation. 

The structure of administrative courts also makes them highly vulnerable to politicization. Both immigration courts and the BIA are housed under the U.S. Department of Justice. This means that judges are hired and promoted by the Attorney General, and that the Attorney General can make decisions in individual cases which are then binding on immigration courts.

President Trump’s picks for Attorney General, Jeff Sessions and Bill Barr, have made prolific use of this power, invoking it much more frequently than past administrations have. They have issued decisions denying asylum protections to people fleeing gang and domestic violence and people persecuted because of family ties. Other decisions have changed the procedural rules to make it harder for immigration judges to end or pause cases without deporting people, even when the person being deported clearly qualifies to stay in the country and their application is waiting in a government backlog. The Justice Department has also issued new rules governing the operation of immigration courts and the BIA and shifting more power to political appointees.

Even the immigration judges’ union has expressed concerns that the Trump administration is treating them as part of a system aimed at deporting as many people as possible rather than as independent adjudicators protecting due process (the Trump administration has since sought to decertify the union). And even though many of the administration’s actions are being challenged in federal court by the ACLU and other organizations, in the meantime they have a profound impact on people struggling to get a fair hearing.

We should all oppose the Trump administration’s attacks on due process in immigration courts.  Not only should no child be threatened with violence by an immigration judge, but no person should be denied a fair chance to seek refuge or stay in the U.S.

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