“Things were bad. And now they’re so much worse,” is how analysis of immigration policy under the second Trump administration can be summed up. But that raises the question: if things were always bad, why does it matter that they’re worse now?
Sometimes, the answer is that the system was bad because it had the potential for abuse — and now it is being abused in exactly the way its critics feared.
Take the immigration courts, whose integrity has been beaten to a pulp this past year. The administration has used every tool available to reshape the courts into an instrument of their will to punish immigrants – including a troubling new regulation published just last week that makes a mockery of the immigration-court appeals process by forcing most cases to be dismissed by default mere days after they’re received.
The standard line on immigration courts has always been that they’re not “real” courts as you might think of them from TV legal dramas: judges are employees of the Department of Justice, and the Attorney General and other political appointees have a say over both what judges decide and how long they have to decide it.
Still, those executive branch employees have historically had some discretion over immigration matters. Otherwise, the Secretary of Homeland Security would have to sign off on every green-card decision and every ICE arrest.
And immigration judges, too, had a fair bit of discretion. That wasn’t inherently good or bad for immigrants, but it did mean that chances of success in court were partly determined by geography – thanks to federal courts, immigrants face a higher bar for asylum in, say, Texas than they do in New York — and partly by sheer luck of the draw. The Attorney General and company weren’t always weighing in.
But now, the Trump administration’s strategy has been to give more discretion to those who are likely to use it to restrict immigration and punish immigrants, while removing discretion from anyone who’s more likely to use it in immigrants’ favor.
In the first term, the administration tried to accomplish this using the tools of bureaucracy: hiring, promotion, and reorganization. New immigration judges were hired — and placed under “performance metrics” during their first two years that forced them to decide cases quickly. (In practice, this might mean they were disinclined to defer immigrants’ hearings until they found a lawyer, for example.) Existing judges were pulled more tightly under the control of their supervisors and a newly-created Office of Policy; creating new offices is, of course, a surefire way to ensure everyone in the new office is on your side.
All of these tools could be used to pressure judges to rule against immigrants, but not necessarily dictate they do so.
But the first Trump administration laid the groundwork for the second one to go much further. In 2019, the administration moved to decertify the union representing immigration judges – which severely restricted both direct administrative control, and the executive branch’s ability to fire judges whose decisions it disliked. The union was officially decertified in 2022.
Ironically, the key argument against the judges’ union was that judges essentially set policy through their decisions, making them management rather than labor. But because the union is no longer able to protect judges, the second Trump administration has, to all appearances, reduced judges’ autonomy to make decisions about much of anything.
In some cases, we know for sure that the Department of Justice is stripping judges of autonomy. The Department of Justice has taken the position that most immigrants arrested by ICE are categorically ineligible for bond – forcing immigration judges to rule in the administration’s favor even in the face of federal court rulings attempting to restore bond eligibility.
Other times, it seems, judges are being directed behind the scenes. When ICE attorneys have asked for immigrants’ cases to be dismissed or rejected en masse, immigration judges are now all too willing to go along. While there isn’t any firm evidence that DOJ is directing immigration judges to go along with ICE actions, their readiness to comply with these new tactics the minute they’re introduced certainly raises questions about how much leeway judges really have to act as neutral arbiters between immigrants and ICE.
Or perhaps it’s simply that judges more likely to rule in immigrants’ favor have been fired — nearly 100 of them in the first year of this term – for no ostensible reason other than that the administration wants them out. Their ranks have been reinforced by new hires with law-enforcement backgrounds, and by temporary judges from the military’s Judge Advocate General corps who lack intimate knowledge of immigration law and are being instructed in it by the same people who are trying to direct case outcomes.
That brings us to last week’s troubling new regulation. In a real court system, the remedy for an unfair decision from a judge is to appeal. The Board of Immigration Appeals (BIA), which handles appeals from immigration courts, has always been even more vulnerable to control from political appointees – with various administrations growing and shrinking the number of BIA members repeatedly, allowing them to stack or purge its ranks. The first Trump administration expanded the BIA, and the second has radically shrunk it. The current BIA has only fifteen members, all but three of whom are Trump appointees.
This has contributed to extremely long wait times for appeals to be considered: lousy for immigrants who have won their cases and are still being held in detention because DHS is appealing, but good (or at least better than deportation) for asylum-seekers who fear going back to their home countries but couldn’t persuade a judge they were victims of persecution there.
你知道吗？非公民办理驾照时的这个错误可能会导致选民欺诈
But the appeal system as we know it is poised to change, thanks to a regulation published by the DOJ last week that is set to take effect March 9. The regulation radically changes the procedures for BIA appeals to favor “summary dismissal” — rather than considering the appeal at all. It gives immigrants and their overworked attorneys (or DHS) only 10 days after a judge’s decision to file an appeal – plus a newly-hiked $1,000 filing fee – and the BIA only 15 days to then make a decision. Furthermore, the BIA will only consider an appeal at all if the judge initially reviewing the appeal chooses to refer it to the full board – and a majority of Board members vote to consider it.
There are a few exceptions — including appeals of rulings on bond or parole (which is to say, immigrants fighting a denial of bond or parole will still be subjected to long wait times). And more importantly, since the BIA isn’t necessarily the end of the road for immigrants fighting their cases in court (some removal orders, for example, can get raised to the federal Court of Appeals), the biggest practical effect may be that the federal appeals courts get flooded with cases that have been summarily dismissed by the BIA.
Federal appeals courts have often been skeptical of the immigration court system in general and the BIA in particular – even before the bench’s newfound willingness to review individual decisions to hold an immigrant in detention. But the new rule makes it awfully clear that the BIA is not really an appellate body; it’s a bureaucratic chokepoint controlled by Attorney General Pam Bondi’s DOJ.
The best argument for independent immigration courts was that executive control made abuses of power possible. They’re no longer possible; they’re happening. That’s the difference between a not-really-independent immigration court system and a kangaroo court: between bad and worse.
