Think Immigration: Our Immigration “Courts” Need a New Boss

This Boss’s Day, remember who runs America’s immigration “courts.” They don’t answer to an independent judiciary. They answer to a political boss—the Attorney General. Right now, that boss is Pamela Jo Bondi. Congress needs to move immigration adjudication out of the Department of Justice and into an independent Article I court system.

The problem starts with structure. The Executive Office for Immigration Review (EOIR)—the agency that houses immigration judges and the Board of Immigration Appeals—was created inside DOJ in 1983. The judges are all DOJ employees. That is not an independent court system; it’s a courtroom that reports to a cabinet officer.

First, the boss hires and fires the judges. Over the past months, reporting and congressional oversight have documented mass removals and departures—well over 100 immigration judges fired or pushed out since January 20, 2025—dropping the overall number of immigration judges from around 700 to around 600. Once upon a time, injecting partisan politics into immigration judge hiring and firing was treated as a scandal: Attorney General John Ashcroft’s 2002–2003 “streamlining” slashed the BIA’s size amid widespread criticism of politicization, and the DOJ’s Inspector General in 2008 found unlawful political and ideological vetting in IJ/BIA selection. Now its commonplace. An administrative judiciary which reflects only the current Administration’s policy prerogatives is not independent.

Second, the boss’s department litigates against people in federal court while also housing the “court.” In removal (aka deportation) proceedings, the Department of Homeland Security is the “prosecutor” and the parties appear before DOJ immigration judges. But when a deportation target then petitions a U.S. court of appeals to review an adverse removal decision, the side pushing for deportation is the Department of Justice’s Office of Immigration Litigation—meaning the same department that houses the “neutral” adjudicators also argues to uphold their outcomes. Due process requires both parties to litigate before a truly neutral forum.

Third, with the stroke of a pen, the boss can rewrite nationwide rules case by case. The Attorney General can take any immigration case, decide it personally, and bind every immigration judge and the BIA nationwide. That power has swung core asylum rules back and forth across administrations—for example, the Matter of A-B- domestic-violence asylum standards were restricted in one administration, vacated in the next, and then restored again in 2025—all without Congress changing a word of the statute. That is political policymaking, not legal judgment by an independent court.

Meanwhile, the system is drowning. The immigration-court backlog now exceeds 3.4 million cases. Volume doesn’t excuse a structure that lets a political appointee supervise judges, control precedent, and have the same department defend outcomes in federal court. Due process means both sides—government and respondent—appear before a genuinely neutral decision-maker. We don’t have that now.

There’s a straightforward fix. Congress has the constitutional authority to create independent Article I courts. We already use this model for the U.S. Tax Court, which by statute is “not an agency of, and… independent of, the executive branch.” Apply that here: fixed-term judges selected for judging, a chief judge (not a cabinet officer) managing dockets and discipline, transparent rulemaking, and routine appellate review to the federal courts of appeals. Enforcement agencies would still litigate policy—but not supervise the judges deciding their cases. That’s how due process is supposed to work.

Boss’s Day is about leadership. Real leadership means building a court system that isn’t hostage to whoever holds the Attorney General’s chair. Put immigration adjudication where it belongs: under an independent Article I court, led by judges whose duty is to the law—not to a political boss.

Jeremy L. McKinney is a North Carolina Board-Certified Immigration Law Specialist, Past President of the American Immigration Lawyers Association, and has testified before the United States House and the Senate on immigration court reform.