A Charlotte immigration lawyer is accusing the judges who hear most of her cases of illegally denying bond hearings for hundreds of people facing deportation.
The class-action complaint filed by Jordan Forsythe Greer and two nonprofit groups says two of the Charlotte-based judges, Stuart Couch and Barry Pettinato, are literally using a rubber stamp to reject requests for the hearings.
“The Court declines to exercise its authority,” the stamp reads.
That means undocumented immigrants taken into custody across the Carolinas face weeks or even months of additional detention while incurring the increased costs and complexity of defending themselves in a distant court, according to the complaint.
Meanwhile, family members and potential witnesses can be forced to drive hundreds of miles to immigration courts in other states where the bond hearings are ultimately held.
“We’re not asking the federal courts to order the immigration judges to grant bonds,” said Greer, who filed the complaint this week. “We’re asking the courts to order them to hold bond hearings.
“We want the immigration judges to do their jobs.”
The lawsuit was filed against the backdrop of roiling immigration debate that could close down the federal government by the end of the day.
Republicans in Congress want to pass a temporary spending bill that would keep the government operating for the coming weeks. But Senate Democrats want passage tied to protections for young people brought to the country illegally by their parents. The impasse could close the federal government as soon as Saturday.
The Charlotte complaint offers the unusual showdown between an attorney and three sitting judges. Greer accuses the three of violating both federal law and the Constitution in failing to hold bond hearings.
Pettinato has said he is “done hearing bonds,” the lawsuit says. “Attorneys can keep filing, but I’m not going to hear them. Neither is Judge Couch.”
A third judge, Theresa Holmes-Simmons, won’t hold a bond hearing if the immigrant involved has been transferred outside of the Carolinas or is in the process of being moved, the suit says.
Couch, Pettinato and Holmes-Simmons did not respond Thursday to a phone request to the immigration court for comment.
Only one of the court’s judges – Rodger Harris – follows the law by holding bond hearings when a request is properly filed, the lawsuit says.
As described in the complaint, the Charlotte Immigration Court operates at the opening of a deportation pipeline that bypasses a key legal right of detainees.
Since most immigrants taken into custody in the Carolinas are transferred to another jurisdiction, the Charlotte judges don’t hold bond hearings, the lawsuit says. When requests for hearings are filed, the Department of Homeland Security manipulates the process by making sure those defendants are moved elsewhere or tells the court that a transfer is imminent, Greer claims.
“There is no legal justification for this rationale,” Greer’s complaint says. “(Charlotte’s immigration judges) possess jurisdiction to conduct bond hearings notwithstanding any such subsequent transfer.”
The suit also names as defendants a long list of government officials involved in immigration enforcement – from Attorney General Jeff Sessions to Mecklenburg sheriff’s Maj. T.E. White, the facilities commander at the county jail.
The Department of Justice, which Sessions heads and which appoints immigration judges, declined to comment about the case Thursday.
Couch is a former military prosecutor who tried several detainees on criminal charges at Guantanamo Bay. In remarks last year to law students at Elon University, the retired Marine said the country’s immigration laws “have to be enforced. Otherwise the rule of law is not upheld.”
He added: “In our jurisprudence and really in our character in America is the dignity of every human being, that every human being is entitled to respect.”
The complaint names two plaintiffs. Both are North Carolina men recently taken into immigration custody. Jorge Miguel Palacios of Charlotte, a native of Mexico, was detained Tuesday. He’s being held in the Mecklenburg jail.
Jesus Eduardo Cardenas Lozoya of Clayton was detained by Homeland Security officials on Jan. 3. He’s being held in the Stewart Detention Center in Lumpkin, Ga.
Federal officials created Charlotte’s immigration court in 2008 following a 20-year surge in the flow of undocumented immigrants to the Carolinas.
Today, the four judges handle a heavy caseload. During his Elon speech, Couch said the Charlotte court handles more than 4,000 deportation cases a year. The judges also face a backlog of some 8,000 asylum cases.
According to a July 30 story by the Washington Post, the Charlotte court has earned the reputation as an aggressive enforcer of immigration laws. Over a five-year period, both Couch and Pettinato granted asylum in fewer than 20 percent of the cases they heard, less than half the national rate.
“We should set up billboards on the highway for people coming across the border: Keep going, don’t stop in Charlotte,” Durham immigration activist Viridiana Martinez told the Post.
As with other state and federal courts, immigration judges can grant bonds to defendants who are not considered a threat to public safety or a flight risk.
Greer told the Observer that bonds and bond hearings are routine in other immigration courts. But the Charlotte judges stopped holding hearings about two years ago, she says, and the city’s immigration attorneys still don’t understand why.
“Charlotte immigration judges are outliers,” said Kristin Macleod-Ball, a lawyer with the Boston-based American Immigration Council, which has joined the case.
“(Judges) in other immigration courts don’t shirk their responsibilities in the same way.”
Researcher Maria David contributed