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.
Usually, I don’t believe in revenge, but I’m surprised to see this post from a lawyer who has witnessed the suffering of asylum seekers caused by these lazy judges. Though there are good judges, Trump is taking revenge on behalf of those who were suffered by these cruel judges, separated from their beloved families for years, and forced to spend thousands of dollars to complete their cases. Because of these people, cases have been backlogged for more than 10 years.
I wish he had fired all of them so they could experience what it feels like to be helpless and separated from family. Thank you, Mr. President!
Jason, thank you for the update! Let me preface my response by saying that I don’t know much about this area of the law. Therefore, my opinion on this may or may not make sense. It is my understanding that the president has significant authority over the immigration court system, but there are constitutional and statutory limits, particularly regarding due process protections and the rights of permanent residents in immigration court and those already granted asylum.
Further, Immigration judges and BIA members are part of the Executive Office for Immigration Review, which falls under the Department of Justice. Since they are not Article III judges with lifetime appointments but rather executive branch employees, the Attorney General, appointed by the President, has broad discretion in hiring and firing them. However, and this is a BIG however, terminating BIA members without following proper procedures, which you hinted at in your article, such as dismissing them before their probation period ends without justification, could be legally challenged.
It is also my understanding that- and I know that I could be wrong- the proposed change of converting immigration judges into special inquiry officers raises legal concerns since it would fundamentally alter immigration court procedures and may violate statutory due process protections. The INA requires removal proceedings to be conducted before an impartial adjudicator with the right to counsel and an appeal process. Removing DHS attorneys from the process and eliminating appeals would significantly reduce procedural protections and could be seen as violating due process under the Fifth Amendment. Based on your article, I did not get the impression that the part to counsel and an appeal process would remain once Stephen Miller and other Trump Nazis have implemented their change to the EOIR.
Your article did not mention much about people with asylum or refugee status and permanent resident status, for example, who found themselves in immigration court. I am therefore wondering if these “inquirers” would also be adjudicating cases regarding LPRs. For, LPRS and asylees (those granted asylum) have stronger due process protections than undocumented individuals because they have lawful status in the U.S. If changes eliminate appeals and legal representation rights, lawful permanent residents could challenge their removals in federal court under the Administrative Procedure Act and the Constitution. And what about these case being appealed to the BIA?
I am therefore of the opinion that eliminating appeals and turning judges into interrogators could be seen as a denial of fundamental fairness- and possibly constitutional rights and violation of immigration laws. There is also a separation of powers issue since restructuring the entire court system unilaterally, despite the fact that president has authority over the immigration court system, could lead to challenges from Congress, which has authority over immigration laws. But would Congress, which the Republicans currently have majority, genuflect to Trump’s illegal and cruel demands? Additionally, if the Executive Office for Immigration Review makes major structural changes without following proper rulemaking procedures, lawsuits could block these changes in federal court. I think our best hope for finding this change unlawful is in the judicial system. Congress is broken at this time.
Great question Jamie!
Jason please consider answering Jamie in some detail today now that you’ve dropped this bomb on your readers this morning. Thank you 🙏
Jamie,
Thanks for your continued participation and input in this platform. I have learnt a lot from you. My question to you here, what has the legal permanent resident and asylum granted (asylees) to do with this article? What situations could take them to the court and you get concerned on the overhauling of the BIA?
Thanks
I applied i-765 renewal based on pending asylum c8 last week online. I was issued a receipt right away and this week i can see in my progress that step 1 and step 2 fingerprints completed thats waived. And its says final decision current step 3. How long will it take for i-765 to be approved renewal also my progress says estimated time for approval is 5 months.
There is another problem im seeing in documents myuploads whenever i try to to view it it gives data.null.error. I cant see my uploaded documents. I hope uscis can see my uploaded documents. Is that an issue that happened to you clients sir. Thanks