In thousands of cases, life and death decisions are made each year by immigration judges – but don't let your title give you the wrong idea about your position.
In the United States we have the expectation that judges are independent, which will allow them to rule without “fear or favor” in cases brought before them. But immigration judges have never had the independence we associate with “real judges.” Immigration courts are not part of the judicial branch like other courts, but are located within the Executive Office of Immigration Review of the Department of Justice. Its judges are appointed by the attorney general, to whom they must answer. Unlike federal judges, immigration judges do not have lifetime appointments. Even after completing a required two-year probationary periodThey can be removed by the attorney general, making them susceptible to political pressure in a way that federal judges are not.
Immigration courts have also been starved of resources: money has poured into law enforcementresulting in increasing numbers of non-citizens ending up in court, while a similar increase in court funding has not materialized. This has led to an overwhelming backlog of cases, currently almost 3.5 million. Immigration judges have been under constant pressure to work faster.
Proposals to reform immigration courts to give their judges real independence date back decades. there has been repeated calls make immigration judges part of the judicial branch and not the executive and provide them with adequate resources. The most recent proposal was in 2022 with the introduction in the Chamber of Royal Courts, Rule of Law Act.
Unfortunately, like many previous immigration court reform proposals, that legislation did not advance, and now the Trump administration has leveraged its executive power over the courts to turn them into another cog in its mass deportation machine. He has made clear that the role of immigration judges is not to decide cases fairly, but to remove as many noncitizens as possible, as quickly as possible.
The administration wasted no time in its attack on the immigration courts; on his first day in officeHe replaced senior officials at the Executive Office for Immigration Review, who provide directives to judges on decision-making. The new leadership produced a dizzying number of policy memoranda telling judges how to handle cases, including adopting procedures that would make it easier for Immigration and Customs Enforcement to carry out the famous court arrests of noncitizens who appear as required for hearings.
The replacement of the office's leadership was followed by the widespread firing of immigration judges across the country. Of the just over 700 that were in service at the beginning of Trump's term, to date, more than 100 have been fired, while a similar number They have resigned or retired: a surprising rate of attrition in just one year.
Who were the judges who were fired? Unsurprisingly, they were those who were perceived as an obstacle to the administration's mass deportation program. The judges who had a high relief granting rate non-citizens were on the chopping block. The administration fired them without cause, and in fact it would have been difficult to prove why: many of these judges had received exemplary performance reviews until its completion.
One policy memorandum of the re-staffed Executive Office for Immigration Review foreshadowed the dismissal of judges who ruled in favor of immigrants too often for the administration's liking. He stated that although immigration judges “are independent in their decision-making in the cases before them,” anyone who was “adjudication outliers” or had “statistically improbable outcome metrics” (i.e., too many relief grants) could face consequences, including removal. Of course, the judges who had exceptionally high levels denial of the cases were not dismissed because they were outliers.
Also targeted for dismissal were judges appointed by the Biden administration, many of whom were still within their probationary period.
Last year's purge is having the desired effect: starting in August 2025, the national asylum rate had gone through half to 19.2%a historic low.
The Trump administration's plan to fill the staffing gap is as troubling as the purge itself: replacing permanent judges with temporary judges, eliminating any significant professional requirements for these temporary judges and militarizing the position, with lawyers from the service branches being appointed to these positions.
Although these military lawyers are uniquely vulnerable to political pressure and for the most part are not familiar with immigration law, an area characterized as secondary in complexity only to the tax code — They are probably professionals committed to the law. That may be an obstacle to the administration's attempt to deny due process and deport people who have a valid claim to remain in the US.
The proof is already that newly appointed judges who are not sufficiently on board with the administration's mass deportation program will not last long. Christopher Day, a U.S. Army Reserve attorney appointed to serve as an immigration judge in Annandale, Virginia, He was fired after a month on the bench; its decline was evidently providing relief at an unacceptable rate.
The appointment of temporary judges on loan from the Pentagon raises particular questions about legality because the Posse Comitatus Law bans the army engage in civil law enforcement (which is immigration) without authorization from Congress. None other than now-Justice Samuel A. Alito Jr., in a memo dating from his days in the Reagan White House, concluded that serious legal questions would arise from the assignment of military lawyers to perform civilian law enforcement duties.
Members of Congress, primarily Democrats, have criticized the layoffs, and in December, two from California (Sen. Adam Schiff and Rep. Juan Vargas) filed legislation prohibit the appointment of military lawyers, limit temporary appointments and require adequate training.
It is unclear how proposed reforms or challenges to the widespread removal of immigration judges will pan out. What is clear is that the Trump administration is perverting justice, taking advantage of the unfortunate fact that immigration judges are not real judges and therefore lack the protections afforded to members of the federal judiciary.
One can only hope that the Trump administration's attack on the immigration courts will bolster support for long-needed reforms. Immigration courts should be real courts, independent of the executive branch, so that judges can make principled decisions, applying the law to the cases before them, without bias and with justice for all.
Karen Musalo is a law professor and founding director of the Center for Gender and Refugee Studies at UC Law, San Francisco. She is also co-principal author of “Refugee Law and Policy: A Comparative and International Approach.”
