Our immigration courts no longer offer even the veneer of fairness

Due Process Under Siege: How Immigration Courts Are Losing Their Independence

Our immigration courts no longer offer - Having spent years navigating immigration policy across five separate presidential administrations—both Democratic and Republican—I've witnessed significant shifts in how our system operates. My career has taken me from the White House to the Department of Justice, and ultimately to serving as an appellate immigration judge. While Immigration and Customs Enforcement's increasingly unpopular crackdown dominates headlines, what's occurring within our immigration courts deserves equal attention. The situation is profoundly troubling.

Constitutional Protections Eroding

The Fifth Amendment establishes a fundamental guarantee: no individual residing on American soil may be deprived of life, liberty, or property without due process of law. This constitutional protection extends equally to citizens and noncitizens, ensuring both groups possess the right to notice and to present their case before the government can incarcerate them or confiscate their assets.

Last year, the Supreme Court delivered a unanimous decision reaffirming noncitizens' entitlement to due process protections. Despite this judicial endorsement, the current administration continues diminishing immigrants' constitutional rights. Crucially, because these protections apply identically to citizens, every American's rights are simultaneously shrinking.

Structural Vulnerabilities Exposed

The vast majority of immigrants confronting deportation receive a hearing within immigration courts, which operate under the Department of Justice. These proceedings allow individuals to present their arguments for remaining in the United States. Incorrect rulings carry devastating potential outcomes, including deportation to nations where torture awaits or permanent separation from beloved family members.

Approximately 600 judges preside over 77 immigration courts nationwide. Unlike federal court judges who function independently from law enforcement and elected officials, immigration judges occupy a different structural position. Both immigration courts and enforcement agencies—including ICE—belong to the executive branch. This arrangement creates susceptibility to political interference, yet historically, immigration judges have preserved meaningful independence from both law enforcement and political leadership.

The Trump administration is systematically dismantling that independence through multiple mechanisms.

Directives and Dismissals

Initially, the Justice Department released directives aligning with Homeland Security's mass deportation objectives. These instructions permit ICE to apprehend immigrants directly within immigration courts while simultaneously encouraging judges to dismiss pending cases in manners that facilitate those arrests. Consequently, judges have ended immigration proceedings before reaching resolution at rates exceeding 600 percent.

Rather than functioning as impartial arbiters, courts are progressively transferring their authority to ICE. This dynamic resembles allowing a pitcher to call his own balls and strikes, except with life-altering consequences at stake.

The Board of Immigration Appeals Undermined

Before seeking review from a federal judge, immigrants must first appeal to the Board of Immigration Appeals. This appellate body is designed to examine whether immigration judges properly applied legal standards. However, the board has abandoned independent, thorough review in favor of issuing binding rulings that strengthen Homeland Security enforcement actions.

When ICE disregarded a legal order protecting a Salvadoran man from deportation, the board responded by restricting judges' future ability to grant similar protections. Similarly, when Homeland Security implemented a policy maintaining long-term residents in detention, the board validated the questionable legal reasoning supporting that practice. Judges spanning the ideological spectrum have rejected this interpretation more than 3,000 times. Appeals courts remain divided on whether the policy withstands legal scrutiny, and the Supreme Court will likely resolve the matter.

Since Trump's inauguration, the board has issued over 120 precedent decisions establishing rules or legal standards for subsequent immigration cases—surpassing triple the monthly average recorded over the previous decade. With only one exception, every procedural decision has favored the government against immigrants.

Additionally, the board announced a rule permitting most cases to be dismissed without substantive consideration, leaving immigrants exposed to immediate arrest, detention, and deportation. Although a federal district court invalidated critical components of this rule, the government has appealed. These procedural and substantive limitations deprive immigrants of meaningful opportunities to present their cases, regardless of claim strength.

Financial and Procedural Barriers

Immigrants must navigate the board before accessing federal courts, but this requirement carries substantial financial burden. The appeal fee now stands at $1,030—an increase exceeding 800 percent from 2025 levels—even though successful relief remains extraordinarily rare.

Furthermore, despite immigration courts managing more than 3.5 million pending cases, the Department of Justice has fired at least several hundred immigration judges, further destabilizing an already overwhelmed system. These combined changes threaten to transform immigration courts from venues of fair adjudication into instruments of political enforcement, undermining constitutional protections that have long defined American justice.