What Is an ‘Immigration Court,’ Anyway?

The Immigration Court of the Department of Labor, May 10, 1926. National Photo Company Collection, Library of Congress.

Last Friday, Senator Jamie Raskin led sixty-six Democratic members of Congress in a letter seeking information about recent immigration judge and administrator firings. The letter was addressed to Attorney General Pam Bondi and Executive Office for Immigration Review acting director Sirce Owen and you can read it here. Earlier this week, Senators Markey, Warren, and Whitehouse sent a similar letter focusing on the firings’ specific impact on heavily backlogged immigration courts in New England.

What Happened in the Immigration Courts?

On February 14, the Department of Justice fired thirteen immigration court judges who had not yet been sworn in and five associate chief immigration judges who supervise the immigration courts. Two other firings had occurred earlier in the week. Within the week, DOJ also moved to reduce the size of the immigration court appellate tribunal, the Board of Immigration Appeals, from twenty-eight members to fifteen, and dismissed nine Board members hired by President Biden.

What Kind of Court Is an ‘Immigration Court’?

As somebody who writes and speaks about the immigration courts a lot (shameless plug to buy my book here), I’ve learned that even many lawyers don’t know what kind of “court” the immigration courts are, or why they are subject to this kind of intervention by the president or his cabinet. What we call the “immigration courts” are actually an office of the Department of Justice called the Executive Office for Immigration Review (EOIR). As part of a federal agency, hearings before EOIR are agency adjudications. The adjudicators are attorneys hired by EOIR to hear cases in which the Department of Homeland Security charges someone with violating the immigration laws and seeks their removal from the country.

Does the President Have the Right to Control the Immigration Courts?

To a large extent, yes. What evolved into the modern EOIR began with the Immigration Act of 1891 as a responsibility of the Department of the Treasury to collect bonds and penalties from landing passenger ships. Over the years it’s bounced around from the Department of Commerce & Labor (in 1903) to the newly separate Department of Labor (in 1913) and finally to DOJ (in 1940), but it’s always been agency adjudication. Because agencies are part of the Executive branch, headed by the president, the immigration courts have always been under the president’s control. Since the immigration judges in EOIR are really delegates to help the attorney general handle the caseload, there’s even a regulation that says the attorney general can take over any immigration case and decide it personally.

Is Presidential Control Over the Immigration Courts Constitutional?

This structure probably doesn’t violate the due process clause, but it raises important concerns about separation of powers. Under the Supreme Court’s case law, due process requires a “neutral arbiter.” But it take a lot to violate due process this way. The Court has held the right to a neutral arbiter to be violated only where the judge has a financial interest in the outcome of a particular case or has made a public prejudgment of that case on its merits. That’s rarely the case in immigration court.

But the Constitution is also built around the idea that rights are best protected by separating powers among three co-equal branches: the legislative (described in Article I), the executive (Article II), and the judicial (Article III). The Framers anticipated that the executive branch would prosecute cases, and the judicial branch would decide them. As government has grown and agencies have proliferated over the years, more and more issues are first decided by agency arbitration, where executive branch (Article II) officials act as both the prosecutor and the judge. Decisions of agency adjudicators can then be reviewed by Article III judges, usually at the appellate court level. That rankles many people when citizens and civil claims are involved, and the Supreme Court has recently declared agency adjudication unconstitutional under some circumstances. But in the immigration context, it’s still treated as fine – even though lives are sometimes on the line.

Project Immigration Courts 2025

In addition to the terminations, the Trump administration has promised, hinted, or rumored that it will remake the immigration courts in a variety of other ways, such as terminating immigration judges without cause, packing the Board of Immigration Appeals, and changing judges’ titles back to “special inquiry officers,” as they were known before 1973. The legality of these moves, and whether these changes would directly or indirectly change the protections available to respondents, are all open questions. I’ll explore each of these questions in future posts.