Federal agents stand outside immigration court at the Jacob K. Javits federal building, Friday, March 6, 2026, in New York. (AP Photo/Yuki Iwamura) I have worked on immigration issues across five Democratic and Republican administrations, including in the White House, at the Department of Justice and as an appellate immigration judge. What is happening in the immigration courts — although less public than Immigration and Customs Enforcement’s increasingly unpopular crackdown — is deeply concerning.
Under the Fifth Amendment to the Constitution, no one on U.S. soil can be “deprived of life, liberty or property without due process of law,” meaning that citizens and noncitizens have a right to notice and to be heard before the government can put them in jail or seize their property.
Last year, the Supreme Court unanimously reaffirmed noncitizens’ rights to due process. But the administration is whittling away at immigrants’ due process rights, and because those rights are the same for citizens, the rights of all Americans are dwindling.
Most immigrants facing deportation are entitled to a hearing in immigration court — part of the Department of Justice — where they can make the case for staying in the country. Wrong decisions can have devastating consequences, like deportation to a country where they will be tortured or permanently separated from family members.
The nearly 600 judges in the 77 immigration courts are distinct from federal courts. In federal courts, judges operate independently from law enforcement and elected officials, whereas both the immigration courts and enforcement agencies at the Department of Homeland Security — like ICE — are part of the executive branch. This structure leaves the immigration system vulnerable to political interference, but historically, immigration judges have maintained some independence from law enforcement and political leaders.
The Trump administration is stripping away that independence.
First, the Justice Department has issued directives mirroring Homeland Security’s mass deportation agenda, including allowing ICE to arrest immigrants at immigration courts and urging immigration judges to dismiss pending immigration cases in ways that facilitate those arrests. The move led to a surge of over 600 percent in judges ending immigration proceedings before resolution.
Instead of serving as impartial umpires, courts are increasingly turning their authority over to ICE. That is like letting a pitcher call his own balls and strikes, but with life-or-death consequences.
Second, before requesting review before a federal judge, immigrants must appeal to the Board of Immigration Appeals — the immigration courts’ appellate body — which is supposed to review whether immigration judges correctly applied the law.
But the board is not providing independent or thorough review. It has, instead, issued binding rulings that shore up Homeland Security enforcement actions. After ICE ignored a legal order protecting a Salvadoran man from deportation, the board responded by issuing a ruling limiting judges’ ability to grant such protections going forward.
And when Homeland Security adopted a policy to keep long-term residents in detention, the board ratified the dubious legal justification behind the practice. Judges across the ideological spectrum have rejected the reasoning interpretation more than 3,000 times. Appeals courts have split on whether the policy is defensible, and the issue is likely to be resolved by the Supreme Court.
In total, since Trump’s inauguration, the board has issued more than 120 precedent decisions that set rules or legal standards for future immigration cases — more than triple the monthly average over the past 10 years — with all but one procedural decision going against the immigrant.
The board also announced a rule that would allow most cases to be dismissed without even being considered, leaving immigrants vulnerable to immediate arrest, detention and deportation. A federal district court invalidated key aspects of the rule, but the government has appealed. These procedural and substantive restrictions are depriving immigrants of a fair chance to make the case for staying in the country, no matter how strong their claims.
Immigrants must appeal to the board before taking their cases to federal courts, but the stop is costly. Immigrants must pay $1,030 for the appeal — an increase of more than 800 percent from 2025 — even though relief is vanishingly rare.
Third, even though the immigration courts are staggering under more than 3.5 million pending cases, the Department of Justice has fired at least 113 highly trained career immigration judges. The administration is replacing them with “deportation judges” — suggesting case outcomes are predetermined — and temporarily assigning active-duty military lawyers who lack immigration experience.
These actions send an unmistakable message to immigration judges: accelerate deportations or get fired. The message seems to be getting through: By the end of May, judges were denying nearly 94 percent of asylum applications, a historic high.
These immigration courts are falling far short of the due process requirement of a “fair trial in a fair tribunal.”
Congress must take these courts out of the Justice Department to insulate judges from political interference. In the meantime, the administration must stop putting its thumb on the scale and let immigration judges impartially apply the law to the facts before them. It also must stop firing judges without cause and reinstate those unfairly terminated.
Until then, the fundamental due process rights that protect the freedom of everyone on U.S. soil from government abuse are being undermined before our eyes. That’s dangerous for everyone — citizens and noncitizens alike.
Margy O’Herron is a fellow in Cornell’s Migration and Human Rights Program and a senior fellow in the Liberty and National Security Program at the Brennan Center for Justice.
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