Last week, 13 of 28 members of the Board of Immigration Appeals (BIA) were purged. Those targeted include appellate judges appointed by the Biden Administration, some of whom were still on probation (BIA judges have a two-year probationary period) and others who had completed their probation. The firings, which go into effect next month, seem not to have complied with proper legal procedures, and are likely to be challenged in court by at least some of the terminated judges.  

Having talked with people on the inside, this mass firing sounds like it is only the beginning. I’m told that the Trump Administration plans to radically re-make the Immigration Court system in order to dramatically reduce due process protections for non-citizens.

The purge at the BIA is not the first mass firing at EOIR since Mr. Trump took office (EOIR is the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts and the BIA). Earlier this month, the Trump Administration fired 13 new IJs, who had not yet been sworn in, plus a half dozen Assistant Chief Immigration Judges, who served in a management role. Before that, the new Administration fired and replaced the entire leadership team at EOIR, all career appointees and–perhaps coincidentally, perhaps not–all women. 

The rumors of future changes, which I have heard from a credible source, are even more troubling. There are currently about 700 Immigration Judges in the U.S. My understanding is that these IJs (and possibly the remaining members of the BIA) will be converted to “Special Inquiry Officers.” This is effectively a demotion, since SIOs are more like USCIS officers than judges. 

The SIO position was originally created in 1952, and in 1973, SIOs all became Immigration Judges. This marked an increase in authority and professionalism for the newly minted IJs–and they also got to wear nifty judicial robes. I imagine that by increasing the prestige of the job, the government was able to attract stronger candidates. But with the Trump Administration, what’s old is new again, and so it seems we will be returning to the 1950’s. IJs will be converted back into SIOs, and maybe they’ll also be allowed to smoke cigarettes while they conduct their interviews. 

What is the difference between an SIO and an IJ? According to the relevant regulations, an SIO hearing commences with an “order served upon the alien temporarily preventing his departure from the United States.” Then, the “alien shall be interrogated by the special inquiry officer as to the matters considered pertinent to the proceeding, with opportunity reserved to the alien to testify thereafter in his own behalf, if he so chooses.” 

“Following the completion of the hearing, the special inquiry officer shall make and render a recommended decision in the case.” The decision shall recommend either “that the temporary order preventing the departure of the alien from the United States be made final, or that the temporary order preventing the departure of the alien from the United States be revoked.” The “alien” will then have a “reasonable time, not to exceed 10 days, in which to submit representations” related to the SIO’s decision. The “entire record of the case, including the recommended decision of the special inquiry officer and any written representations submitted by the alien” shall then be submitted to “the regional commissioner [who] shall render a decision in the case.” “No administrative appeal shall lie from the regional commissioner’s decision.”

What does all this mean? It sounds like SIO hearings will basically be truncated asylum interviews. There will be no DHS attorney (prosecutor). Rather, the SIO will serve as “interrogator” and decision-maker. Once the SIO makes a decision, that will be forwarded to a “regional commissioner” who will quickly affirm whatever decision the SIO has reached. There will be no appeal, and so the SIO’s decision will be final.

This new procedure would likely be faster than the current system, but with far fewer due process protections. While this would probably reduce the Immigration Court backlog (which currently stands at more than 3.7 million cases), it would also lead to more erroneous and less carefully considered decisions, all of which will endanger legitimate asylum seekers (and others). 

What about the IJ corps? My sources guess that hundreds of Immigration Judge positions will be eliminated during the transition. This is not a surprise, as judges won’t be thrilled about being demoted and EOIR recently announced that it is stripping IJs of job protection. Also,  others–such as DHS attorneys, USCIS officers, and Asylum Officers–could be tapped to fill the SIO positions (though according to INA 101(b)(4), SIOs must be lawyers).

The Immigration Court system is a mess, and so major changes to that system are not necessarily a bad thing. The problem here is the cruel and disorganized manner in which public servants are being cut, demoted, and reassigned, and–worse–the stated intention of this Administration, premised on lies about non-citizens, to deport “millions” of “illegals.” We shall see whether these changes come to pass, but it is difficult to believe that re-making the Immigration Court system will be anything but window dressing on the Administration’s plans to harm the most vulnerable among us.