As the nation focuses its gaze on the violent arrests of immigrants and the aggressive acts of intimidation against protesters by the governmentmuch less attention has been paid to a little-known administrative court whose extreme decisions have set the stage for more mass deportations: the Board of Immigration Appeals.
This board operates largely behind the public’s back, but The opinions it publishes are mandatory for the country’s 600 immigration judges. and also for all immigration officials and officials. Historically, the Board of Immigration Appeals has considered all the appeals it has received and techniques to resolve hundreds of thousands of cases per year.
When evaluating appeals that come to it from all over the country, the board is supposed to resolve confusions regarding immigration law or inconsistencies in its “correct interpretation and administration” and, thus, publish certain cases to establish precedents.
Like the country’s immigration courts, this board is part of the Department of Justice (DOJ). In theory, The board is separate from the immigration watch over apparatus operated by the Department of Homeland Security. (DHS) so that it can function as an impartial court. However, like the DHS deepest, board member judges answer to people in political office who are aligned with the administration’s priorities.
Since President Donald Trump’s return to power, the board does not even keep the appearance of being just an impartial interpreter of the law. At the bottom, the attorney general’s office has exerted unprecedented influence over the board’s opinions, including a record number of decisions that change the rules for immigrants seeking freedom after being detained, judicial appeals after receiving a deportation order or permanent residence in the country. Thousands of these cases are not easily available to the public.
And in February 2026, the board announced plans to introduce a regulation that would refuse to consider most appeals. In addition to sharp increases in the cost of filing an appeal and the many dismissals of judges who DOJ leadership believes did not support its priorities, these changes restrict immigrants’ rights and reduce judicial impartiality, undermining due process and threatening immigrants’ freedom and even lives.
The board has restricted access for immigrants
The multiple changes implemented within the board since Trump’s return to power have restricted the ability of immigrants to appeal immigration court rulings. In February 2025, the attorney general reduced the size of the board from 28 to 15 members and, to do so, fired or removed all judges appointed by the Biden administration, despite having a huge backlog of appeals.
The board is now composed of 15 judges who are permanent members and four judges who are temporary membersall but two of whom were appointed by Republican attorneys general and all but one of whom were appointed by Trump attorneys general. During the year ending September 2025, the number of cases it considered fell more than 20 percent from the previous year, even though the number of appeals filed doubled.
Additionally, a change implemented by law in July 2025 resulted in an astronomical increase in the cost of filing appeals, from $110 per person to $1,010 (and later rising to $1,030). This change creates a payment system where only those who can pay the high cost can appeal their case to the board.
Still, there have been other changes that raise questions about how genuine the board’s judicial review is. A published board rule would have reduced the time frame for parties to file an appeal from 30 days after an immigration court issues its decision to just 10 days in most cases, hardly long enough to hire an attorney and prepare legal arguments.
Instead of following the current practice of considering the evidence, the immigration court hearing transcript, the immigration judge’s opinion, and the appeal arguments, this rule would have allowed the board to allegedly dismiss almost all appeals without reviewing any of the court records or considering anything else. (A federal court invalidated key parts of this rule in March, but the government will likely appeal this decision.)
Between October 1, 2024 and September 30, 2025, nearly 100,000 appeals were filed. It would be impossible for just the 15 board members to really consider them; instead, the board is likely to continue issuing only decisions that further restrict immigrants’ rights.
Many (but not all) of the board’s perfunctory rejections may be appealed to a federal appeals court for an additional fee of $600. Restricting the board’s ability to conduct genuine judicial reviews would overwhelm federal courts.
Immigrants with pending appeals would be vulnerable to the possibility of arrest, detention and deportation by Immigration and Customs Enforcement (ICE) unless the board or a federal court issues a stay.
New precedent-setting opinions undermine due process and other rights
Since Trump returned to the presidency, the board has issued numerous decisions that undermine the substantive and procedural rights of immigrants. All but one of the 87 decisions restrict immigrants’ rights (the only exception was a case in which DHS did not even show up for a hearing), and none gave immigrants any guidance on what they would need to win in similar cases.
Some of the decisions impose procedural restrictions that undermine the ability of immigrants to have a fair hearing in court. For example, the board ruled in September 2025 that immigration judges can preter—that is, dismiss—asylum applications without allowing the applicant to testify about the details of their case, if there are no facts in dispute and if the initial application does not appear to establish their eligibility for asylum.
The following month, the board gave the green light to immigration judges to dismiss asylum cases without a hearing when DHS argues that the applicant could have sought asylum in another country.
After these two opinions, DHS quickly increased its pretermination requests, which in September 2025 had been less than 1,000 and which in January 2026 reached more than 20,000 and in February to more than 17,000. It has since emerged that he ordered his attorneys to no longer file new motions for deportations to other countries, but it is unclear whether this policy change will be permanent and whether pending motions will still be processed.
Asylum seekers typically arrive in the United States with very few resources and prepare their asylum claims without the help of attorneys, which significantly reduces their ability to present sufficient legal arguments in their initial claims. Now, many will be deported to the countries they escaped from or to other countries with which they have no ties, without even having the opportunity to have their cases evaluated.
Besides, board broke with decades of legislative interpretation when it ratified a DHS policy memo which, without sufficient argumentation, places even immigrants who have lived in the country for years and have no criminal record in an expedited deportation process and forces them to remain detained even when they have permission to live and work in the country or have a pending court hearing.
Now, thousands more immigrants without criminal records are being detained, their cases flooding federal district courts with habeas corpus petitions challenging their wrongful detention. Judges of all ideological stripes have rejected the board’s interpretation of the law more than 3,000 times and continue to order the release of immigrants on constitutional grounds.
While a court in California certified a nationwide class action and declared the policy illegal, that order was stayed while the case is appealed, and the Federal Courts of Appeal for the Fifth and 8th Circuits have upheld this administration’s mandatory detention tactic.
This will encourage ICE to move its detainees quickly to these circuits before they have the opportunity to file a habeas corpus petition where they were arrested or detained in the first instance, and will further flood the district courts with habeas corpus petitions.
The general prosecutor’s office is using a little-known procedural tool to compromise the impartiality of the board
The board has always faced questions about its independence because it is located within the executive branch. The attorney general’s office has the authority granted by law to interpret immigration law and what regulations to delegate to the immigration courts and the board.
While those regulations require DOJ judges to be impartial and seek to prevent their supervisors from ruling on the outcome of each case, they also allow the overall prosecutor’s office to review each individual case and issue precedent-setting opinions.
This process blurs the line between law enforcement, which is often driven by the president’s political priorities, and the delivery of judicial rulings. In the criminal justice system, those functions are kept separate so that judges can function as neutral and independent arbiters of the law. But, in the immigration world, the general prosecutor’s office is not only the highest police entity in the nation, but also a judge.
Furthermore, prosecutorial decisions are often issued without formal submission of briefs, without public disclosure, and without other measures that would increase public confidence that this is a fair process.
As a general prosecutor, Pam Bondi used her authority to severely restrict immigrants’ access to resources.especially that of the asylum. In one case, Bondi made it more difficult to establish asylum eligibility for asylum seekers fleeing domestic violence situations, primarily women and children.
In another decision involving an asylum seeker fleeing gang violence, Bondi restricted applicants’ ability to establish that membership in a family unit or group of relatives could be grounds for persecution.
The two cases go against long-standing immigration laws that affirm that asylum can be established for reasons of persecution committed by private actors when a government cannot or will not protect its population from danger.
Before the first Trump administration, the general prosecutor’s office intervened very little in these cases. During Trump’s first presidency, Attorneys General Jeff Sessions and William Barr weighed in much more frequently, and the Biden administration’s attorneys general later reversed some of those opinions.
This The ping-pong of opinions suggests that attorneys general, who generally reserved the right of review to clarify certain legal interpretations, now see it as their opportunity to implement policy changes through a relatively quick process that does not require the solicitation or consideration of public comments.
Bondi and his acting predecessor also scheduled the release of more than three dozen board decisions just days or weeks after they were issued, which is often too late for an immigrant to appeal them in federal court.
Generally, when the board considers publishing a decision, the parties have the opportunity to file all applicable briefs, as well as amicus curiae briefs, and may request a hearing with oral arguments.
Designating the publication of an opinion to set precedent after it has been decided circumvents that entire process and creates a binding precedent without notifying the public or even the affected immigrant of that possibility.
Behind the scenes we have a president who has exercised tremendous oversight over the DOJ, never seen since the reforms implemented after the Watergate scandal with the aim of putting distance between the White House and federal police forces and prosecutors. It has now become nearly impossible for Justice Department judges to maintain even the appearance of independence.
The board has a list of shadow emergency cases
Just as the Supreme Court now techniques to resolve often high-stakes cases through its shadow docket without full briefing, hearings, or explanations of its reasons, the board also issues tens of thousands of decisions each year that are not published.
These thousands of decisions make up the “overwhelming majority” of the board’s rulings, but provide little guidance. They may be issued by a single board judge, often offer little or no analysis, and often reach conclusions that contradict other decisions.
Although recent litigation forces the board to publicly disseminate some of its unpublished decisions, the website used for that purpose is not searchable and opinions are published with significant delays, making it difficult for the immigrant community to understand the board’s jurisprudence.
Combined with the dearth of published opinions that provide any kind of guidance on how to determine the best defense against a deportation case, all of this leaves immigrants and their representatives in the dark. This long-standing lack of transparency is not always minded with the rule of law.
Instead of being an impartial court, The Board of Immigration Appeals has become a judicial front behind which a feigned review of cases occurs and very few guidelines are offered for immigrants and their representatives.
Several attorneys general and the board have undermined the principles of justice and due process and increased the risk that immigrants will end up detained and deported without having the opportunity to contest the case.
Other than the U.S. Supreme Court, the board is the only court that provides a uniform interpretation of immigration law. It should operate like other courts: the immigrant filing an appeal should be given reasonable time to obtain a lawyer and prepare his or her appeal arguments, the cost of the case should be drastically reduced and waived for those who cannot afford it, and the board should provide an individualized review of the allegations and evidence in each case.
And all decisions should be publicly available and searchable on the website, with corresponding removal of deepest immigrant information when necessary.
In the meantime, Congress should remove the immigration courts and the board from the domain of the executive branch and establish them as full-fledged courts under Article I or Article III, in which judges can conduct truly impartial judicial reviews. These immigration judges must be independent of executive branch interference so that immigrants can have a fair hearing in court.
Margy O’Herron She is a senior research fellow, Liberty and National Security, at Brennan Heart for Justice.Neema Jyothiprakash
co-author of this report, wrote it in her capacity as a Brooks Burdette Research Fellow at Brennan Heart for Justice.
