The immigration court system was already strained when Donald Trump took office in January. Since then, he’s taken dramatic steps to undermine it even further.
Over the last seven months, Trump has fired immigration judges, weakened due process rights for those facing deportation and pressured judges to rule in the administration’s favor.
Some of those fired judges, immigration attorneys and other experts say the end result will be that these courts are either destroyed or left so dysfunctional that they can’t effectively guarantee basic rights.
Trump and his team have made clear that they value speed in immigration courts as agents try to meet an unrealistic goal of 1 million deportations in a year. After Republicans in Congress set aside a historic amount of money for deportations, border czar Tom Homan said he wanted to raise the 3,000 daily arrest quota to 7,000.
In theory, people facing deportation should have a chance to make their case before a judge, with proceedings taking months or years in some cases. But now, with a little more than 600 immigration judges, down from roughly 735, they are getting less time and ability to do that.
Charles Kuck, an immigration attorney based in Georgia, says that Trump is intentionally “overwhelming” immigration courts.
“It appears what they’re doing is moving forward with a plan to eliminate due process and immigration judges,” Kuck said. “The due process system created over the last 50 years is frustrating their goal of deporting a million people because it’s physically impossible to have a million cases go through immigration court in one year.”
Trump has cast doubt on the need for due process for undocumented immigrants.
Trump himself has even cast doubt on the need for due process for undocumented immigrants.
“We cannot give everyone a trial, because to do so would take, without exaggeration, 200 years,” the president said in April, claiming it would require “hundreds of thousands” of hearing.
Lawyers such as Kuck and several former immigration judges told me the Trump administration is undermining immigration courts across the board, from firing immigration judges to detaining more immigrants, leading to a backlog in courts. The result is that a long troubled system is now near a breaking point.
White House spokesperson Abigail Jackson argued that new funding approved for the court system in Trump’s megabill will help with the backlog.
“There are currently efforts underway to hire additional immigration judges,” Jackson said. “Illegal aliens going through removal proceedings receive more than sufficient amounts of due process — anyone suggesting otherwise is lying. Any illegal alien who wishes to avoid deportations can self-deport.”
Some $3.3 billion in funding was approved for immigration courts in the megabill, but the law also placed a cap of 800 immigration judges — a number considered far too small to efficiently process the nearly 4 million pending immigration cases. Most experts say the system would need 2,000 to 3,000 judges to process the cases efficiently and fairly.
That same bill guaranteed some $45 billion for immigration detention, and nearly $30 billion for enforcement, including the hiring and training of some 10,000 new ICE agents
Immigration judges are technically employees of the executive branch under the Justice Department, but for the past roughly 50 years, judges have operated with independence and decided cases without interference.
But that norm is being destroyed, say many immigration attorneys and several former immigration judges.
Recently, ICE and the Justice Department declared millions of undocumented immigrants are not eligible for bond release from detention as their cases are processed — a change to nearly 40 years of precedent followed by immigration judges to guarantee due process. Historically, denial of bond was applied to people who recently crossed the border, not longtime residents regardless of documentation status. The Homeland Security Department did not respond to a request for comment about the change.
Victor Nieblas, a longtime immigration attorney in Los Angeles and former president of the American Immigration Lawyers Association, said denial of bond is a tactic to increase deportations.
“The longer you’re detained, the easier it’ll be for you to decide ‘I’d rather go home,’ and so you sign a voluntary return or a voluntary deportation,” he said.
Since January, roughly 106 immigration judges have either been fired by the Trump administration, resigned, or were transferred to another part of the Justice Department, according to the International Federation of Professional and Technical Engineers.
One fired judge, who requested anonymity fearing retaliation from the administration, said the cuts showed the Trump administration wants immigration courts to “collapse.”
“It’s never been like this before,” said the former judge, who had served for years under both Republican and Democratic administrations.
Jennifer Peyton, a recently fired assistant chief immigration judge in Chicago, said the administration is pressuring understaffed judges to speed up their decisions.
Judges have been told they should decide each case within a single hearing block, which runs from two to three hours.
Instead of taking time to conduct research on the legal questions in a case, judges have been told they should decide each case within a single hearing block, which runs from two to three hours.
“You’re creating an environment for the remaining judges where I’m sure everyone’s looking over their shoulder, worried they’ll be fired,” Peyton said. “They are definitely trying to make the system stop working.”
George Pappas, a Boston immigration judge fired last month, said the “drumbeat” started in February. He was told by his superiors to “be careful” with how he ruled and speed up dismissals of pending cases, which would allow Immigration and Customs Enforcement to arrest an undocumented immigrant and put the person in an expedited removal without a hearing.
“That direct pressure undermined my ability to rule neutrally,” Pappas said. It all added “a layer of self policing,” he said, saying that would lead to a “total eradication” of the current system.
A Justice Department official did not answer questions about the accusations leveled by immigration judges who were fired by the Trump administration. Instead, the DOJ official accused the Biden administration of pressuring immigration judges to make certain decisions, and said the Trump administration is looking to hire judges who will expeditiously reduce the backlog of cases.
After the passage of the 1952 Immigration and Nationality Act, the earlier version of immigration courts required that cases be decided by “special inquiry officers” who were not required to be lawyers, as they are now. In 1973, immigration judges were created by regulation.
Asked whether the administration wants to change the required qualifications for immigration judges, both the White House and the Justice Department declined to answer.
If the system reverts, hiring standards could be changed and loyal Trump officials could become judge and jury, Kuck said.
But to do so would likely set off legal challenges. And immigration policy experts warn a broken due process system for undocumented immigrants will impact Americans as well.
“Getting rid of due process is a threat to everyone in the United States who’s here legally or who is a citizen,” said David Bier, director of immigration studies for the CATO Institute. “The immigration courts have proven so many people to be U.S. citizens after ICE has arrested them. In terms of your rights, it matters that we have a system for reviewing whether someone is entitled to be in the United States or not.”
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