Think Immigration: Dismantling the Immigration Courts – An Attack on Due Process

This blog post is part of a multi-part series from members of the AILA Rule of Law (AROL) Task Force; for more information about AROL look to Chair Jerry Grzeca’s blog post which is a handy guide to its purpose, priorities, and work.

Enforcement activities and tactics recently employed by ICE have gotten a great deal of public attention. Arrests at traffic stops, in workplace raids, and in private homes without judicial warrants, the expansion of detention, and recent deportations to countries where the immigrant has no ties have rightly raised concerns among ordinary citizens about government actions. Much of the coverage has focused on the concept of “due process” and what rights noncitizens have when faced with arrest and removal from the country.

While ICE enforcement actions have been playing out in the public eye, this administration has mounted a less visible attack on due process inside the U.S. immigration court system. It is more subtle than the footage we see in the media, but no less critical to anyone seeking to remain in the U.S. A review of what due process means and how it applies in the immigration context may shine some light on this issue.

What Is Due Process Anyway?

The foundations of due process are embodied in the Fifth and Fourteenth Amendments to the U.S. Constitution. Due process seeks to protect individuals facing government action from the erroneous deprivation of life, liberty or property. Traditional hallmarks of due process include the right to notice of the charges against you, the right to respond to those charges, the right to be represented by counsel in criminal cases, the right to a hearing before a fair and impartial tribunal, and the right to a decision made on the record. In some cases, due process also includes the right to appeal an adverse decision.

Due Process in Immigration Court

Specific due process protections in U.S. immigration courts have been codified in statute, in regulations or sometimes clarified in case law. Grounds of removability from the U.S. are charged in a document known as a Notice to Appear which begins removal proceedings and provides the time and place of the initial hearing. The noncitizen has the right to raise defenses against removal and to have a hearing, which includes the right to testify, to present any supporting evidence, and to cross-examine government witnesses. However, removal proceedings are considered civil rather than criminal so there is no right to appointed counsel like that which is paid by the government if you are indigent in criminal proceedings. It can therefore be difficult for a person who cannot find or afford a lawyer to exercise those rights in immigration court.

There is a right to a decision in every case, but scholars and practitioners have long questioned the impartiality of immigration judges due to their lack of independence. Immigration Courts are part of the Executive Office for Immigration Review which is housed within the U.S. Department of Justice. Individual judges are appointed by the Attorney General and continue to serve at his or her pleasure even when the administration in power changes. In other words, Immigration Judges are hired and thereafter are evaluated and subject to discipline up to and including termination by the sitting A.G. Most immigration court decisions can be appealed to the Board of Immigration Appeals (BIA), but BIA judges are subject to the identical hiring and firing authority of the A.G. Moreover, the A.G. can review, vacate or reverse any prior decisions of the BIA and has even taken a case away from the BIA and made a decision before the Board even considered it. This structure has called the independence of immigration judges into question for decades, but several purges of judges at both the immigration courts and the BIA (see below) has sharpened the focus on this issue. Finally, immigrants in removal proceedings do receive a decision on the record. However, the decision may be oral with only a check-box summary of the Order provided in writing. At the BIA level, an appeal may be subject to summary dismissal or alternatively a short decision where all the appellant’s arguments need not be addressed.

Dismantling Brick by Brick

This administration has taken several actions that maintain the appearance of fair removal proceedings while undermining the likelihood of a just outcome on a fully developed record. First, detention itself discourages people from staying to assert their claims. Separation from families and loss of earning capacity often coerce detainees into abandoning strong claims. Moreover, being detained makes it harder to obtain counsel to prepare relief applications, collect evidence and present legal arguments. Lack of counsel correlates strongly with a lower success rate.

Next, new administration policies make it harder to present claims. Stricter rules now require answering every question on every form in English to avoid dismissal, and Immigration Judges have been empowered to “pretermit” applications without a hearing for other reasons as well. Pressure for speedy decision-making causes judges to limit time for hearings, which then leads to limits on number of witnesses or time available for testimony.

Perhaps the most important impact on the fairness of deportation hearings is the qualifications, experience, and background of the judges. Since the 2025 inauguration, over 100 immigration judges have been fired from their positions despite huge backlogs in the courts. Notably, a high percentage of those terminated were hired under President Biden or had experience working at immigration nonprofits or doing removal defense in private practice. Above average grant rates seem to have been a factor, and a disproportionate number were women. Simultaneously, about 600 military JAG officers have been authorized as temporary judges with a goal of increasing the pace of deportations. The hiring announcement explicitly recruited “deportation judges” with the opportunity to “define America for generations.” No immigration experience was required for these positions, and the training period was reduced to only two weeks. These changes have altered the demographics of the immigration bench in a way that upsets the prior balance in backgrounds and perspective.

Curtailment of due process has taken place at the BIA as well. In April 2025, the BIA was reduced to nearly half its previous size despite its pending backlog. The terminations, primarily of Biden appointees, similarly affected its viewpoint. Then in July, the filing fees increased from a maximum of $110 to a minimum of $1,010 in the Big Beautiful Bill. Fee waivers will be available but difficult to obtain for unrepresented, non-English speaking and possibly detained individuals.

Finally, the Administration published in February of this year an Interim Final Rule that revealed its intent to virtually eliminate meaningful review by what’s left of the BIA going forward and accelerate its mass deportations.

Although three of the IFR’s worst provisions were enjoined, others took effect on March 9. Those include requiring simultaneous briefs to be filed within 20 days, meaning that even those successful in immigration court won’t be able to see the government’s arguments before their own brief is due. This 20 day rule also makes it almost impossible that any unrepresented detainee will be able to find counsel in time for a BIA appeal. Worse yet, the chance for extensions or reply briefs has been eliminated. It remains to be seen how EOIR will react to the injunction on remand, but its intent to eviscerate appellate review is crystal clear.

A Partial Remedy – Creation of an Article I Immigration Court

One approach that AILA has championed for years would move the immigration court system out of DOJ and into an independent Article I court, similar to the Court of Appeals for Veterans Claims and the Tax Court. Other key supporters of an Article I immigration court include the ABA, the FBA, and the NAIJ. Congresswoman Zoe Lofgren recently introduced the Real Courts, Rule of Law Act of 2026 which would create that new court. While this move wouldn’t resolve every issue raised above, it is a neutral institution-building bill that should draw support from both sides of the political aisle and would go a long way towards insulating immigration adjudications from undue influence of the Executive Branch and its leadership. To read more about the benefits of an independent Article I court, AILA’s Policy Brief is a great resource.

AILA AROL Task Force Member Karen Grisez, Pro Bono Counsel (Retired), Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC.