© Farhad Sethna, Attorney, September 2025
In this blog article, I will discuss a number of recent immigration court developments as of August-end 2025. That is why I titled this article as I did – I fully expect to report on other developments as the Trump Deportation Machine becomes more and more desperate to ramp up deportations at ANY cost, including human rights and due process.
First, the reader should understand that immigration courts are not like the federal courts. The immigration courts are a creature of statutory authority, not the constitution. They are therefore not protected by the provisions in the constitution, which apply to federal court judges in a separate co-equal third branch of government, such as: lifetime appointments once confirmed by the Senate, thereby guaranteeing impartiality from both the executive and the legislature, and a separate budget to insulate it from the vagaries of Congress and the Executive branch. [although Congress does hold the purse strings of the Federal Courts, and can therefore restrict the number of judges, staff, and facilities, if it so chooses.
In contrast, immigration courts are creatures of statute. The immigration courts were created by the immigration and nationality act, and our staffed by judges who are appointed by the Attorney General. Hence, Immigration Judges do not have lifetime tenure and serve at the will of the Attorney General.
As such, Immigration courts (and their appellate branch, the Board of Immigration Appeals) fall under a separate department (the Department of Justice), and per their name “Executive Office for Immigration Review”, are tasked with making sure that the Department of Homeland Security is following the law when it places aliens into removal proceedings.
On the other hand, the Department of Homeland Security includes over 22 agencies including the ICE, USCIS, and USCBP, entities which are charged with enforcing the immigration laws. So, judges with the EOIR decide whether aliens have been properly placed into removal proceedings, whether USCIS has properly adjudicated alien’s applications – for instance, asylum or whether aliens have indeed violated any federal, state, or local law which makes the alien deportable from the USA.
However, simply being in different departments (DHS versus DOJ) is truly a differentiation of only degree, and not of kind. Under the current administration, the DHS, and the DOJ are both working hand-in-hand, the former to place as many individuals in removal proceedings and the latter to order the deportation of as many individuals as possible.
I do not say this lightly. I base my statement on irrefutable facts. Memo after memo has come from the Director of the EOIR, Sirce Owen, since January 20, 2025. Many of these memos direct immigration judges to act in certain ways, which are extremely restrictive of immigrant rights.
Here are a couple of examples:
First: the number of immigration judges: the Trump administration has been firing immigration judges (over 100 have been fired or left their positions) since it took office on January 20, 2025. Many immigration judges have been dismissed, without any cause or reason. Many of them are fighting legal battles to regain their positions. It should come as no surprise that the judges who have been fired are relatively recent appointees of the Biden administration, and/or percieved as sympathetic to immigrant rights.
The Big Beautiful Bill has limited the number of permanent immigration judges to only 800 nationwide. However, in order to overcome the backlog of Immigration Cases on the EOIR docket, the Trump administration has now resorted to the illusion of hiring “temporary immigration judges”. These judges need no immigration experience, and little, or no legal experience either, and can be appointed for six month terms, which are subject to renewal.
It is horrendous and shocking indeed to imagine that a judge, who holds power over someone’s life could be appointed to an administrative law judgeship straight out of law school!
There is no limit on the number of temporary immigration judges. Conceivably, however, this abridged method of appointment could lead to many more problems, as appeals are almost certainly going to mount, both at the administrative level (BIA) and at the federal court level.
In another missive, director Owen has once again pushed for immigration judges to make decisions which are in keeping with EOIR policies and prior case law rather than applying their discretion as impartial adjudicators on an individualized, case by case basis.
To quote, director Owen instructs:
“Adjudicatory outliers or statistically improbable outcome metrics, particularly relative to EOIR’s overall adjudicator corps and after controlling for sample size and relevant docket characteristics, may be indicative of a systematic bias or failure to adhere to applicable law that warrants close examination and potential action.” EOIR memorandum PM – 25–42 “Adjudicator Independence and Impartiality”
This memo goes hand in hand with the EOIR policy memo on pretermission of allegedly legally insufficient asylum applications, PM – 25–28, issued April 11, 2025. In that memo, Director Owen instructs that adjudicators should pretermit (terminate or dismiss an application for relief from removal without even hearing testimony on the merits of the case) any Asylum application, in which there are no factual issues in dispute.
While Director Owen instructs that “the ultimate decision on pretermission remains with the presiding adjudicator“, the overwhelming direction in the memo is that Immigration Judges can and should pretermit applications which do not – in their sole, unfettered opinion – demonstrate a viable claim for Asylum.
There remain significant issues associated with this directive, but perhaps most importantly, the when coupled with the “Adjudicator Independence and Impartiality” directive, the instruction to pretermit requires – without explicitly saying so – IJ’s to deny and pretermit applications to stay within the arbitrary statistical guideposts imposed by EOIR management. Taken together, the memos grant IJ’s the power to pretermit applications, or deny applications, for fear that they may be violating some statistical norm known only to EOIR’s top management. When we place judges under numerical scrutiny, we erode the judicial independence with is a hallmark of any truly functioning and respected judicial system. For instance, I represent clients in many deportation (removal) cases. The client has a fact pattern or situation which may be meritorious, but simply lacks the ability to present his or her claim in a manner sufficient to convince an Immigration Judge that the client indeed presents a valid asylum claim. So, a deserving alien’s claim is unceremoniously dismissed, and the alien is at immediate risk of actual, physical detention and deportation.
Thus, in effectuating vague and often incomprehensible Executive Orders, the immigration court management system has tilted the playing field substantially in favor of the government, and in fact, made Immigration judges, a kind of special prosecutor, rather than an impartial adjudicator. Hence, an alien is faced, not only with having to rebut the arguments of the ICE government attorney, but in addition, might be also faced with a skeptical, incredulous, or biased immigration judge. What chance does an alien have against such a stacked deck?
Finally, given that the immigration courts are creatures of statute, rather than the constitution, and immigration judges can be dismissed at any time, it is highly unlikely that an immigration judge is going to have the courage to push back against these directives or rule in a way that can be perceived as against existing case law especially if the IJ wishes to retain their position, their prestige, and a six figure salary, which goes to support them and their families? An IJ whose decisions do not fall neatly within some statistical parameter (which can change at the whim of EOIR management) can be terminated at any time; even more so for the Temporary Immigration Judges, whose term is limited to six months anyway.
As always, stay tuned for further developments. Please do seek competent immigration advice from a licensed immigration attorney if you have specific concerns about your case.
© Farhad Sethna, Attorney, 2025
Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.