As the nation has focused on the government’s violent arrests of immigrants and intimidation of protesters, less attention has been given to the little-known administrative court whose extreme decisions have paved the way for mass deportation: the Board of Immigration Appeals.
The board operates largely out of the public eye, yet its published opinions bind the country’s 600 immigration judges as well as immigration officers. It has historically considered all appeals it has received, deciding tens of thousands of cases each year. In hearing appeals from across the country, the board is supposed to resolve confusion over immigration law or inconsistency in its “proper interpretation and administration” by publishing select cases as precedent.
Like immigration courts, the board is a part of the Department of Justice (DOJ). In theory, it is separated from the immigration enforcement apparatus at the Department of Homeland Security (DHS) so that it can be an impartial tribunal. Yet like DHS staff, board members answer to political appointees aligned with the administration’s priorities.
Since President Donald Trump’s return to office, the board no longer maintains even the appearance of being just an interpreter of the law. The attorney general has quietly exerted unprecedented influence over the board’s opinions, which include a record number of decisions that change the rules for immigrants who seek release from detention, relief from deportation, or permanent status in the country. Thousands of these cases are not readily available to the public. And in February 2026, the board announced plans for a regulation under which it would decline to consider most appeals. Added to great increases in the fees for filing appeals and the firing of judges whom DOJ leadership thought would not support their agenda, the changes restrict immigrants’ rights and diminish judicial impartiality, undermining due process and jeopardizing immigrants’ liberty and even their lives.
The board has restricted immigrants’ access.
Multiple changes at the board since Trump’s return to office have restricted immigrants’ ability to appeal immigration court rulings. In February 2025, the attorney general reduced the board’s size from 28 to 15 members, firing or pushing out all of those appointed by the Biden administration despite a ballooning backlog of appeals. The board is now staffed by 15 permanent and four temporary members, all but two appointed by a Republican attorney general and all but one of those appointed by a Trump attorney general. The number of cases it completed dropped more than 20 percent in the year ending in September 2025 from the year prior, even as the number of filed appeals doubled.
In addition, a statutory change in July 2025 led the cost of filing an appeal to skyrocket from $110 per person to $1,010 (later increased to $1,030). The change creates a pay-to-play system in which only those who can afford the high fee can plead their case before the board.
Still other changes raise questions about how meaningful that review will be. A published board rule would have reduced the time parties have to file an appeal from 30 days after an immigration judge hands down a decision to 10 days in most cases — hardly enough time to hire a lawyer and prepare legal arguments. Instead of following the current practice of considering the evidence, transcript of the immigration court hearing, immigration judge’s opinion, and arguments on appeal, the rule would have allowed the board to presumptively dismiss nearly all appeals without review of any of the record or further consideration. (A federal court vacated key parts of the rule in March, but the government is likely to appeal.)
Between October 1, 2024, and September 30, 2025, nearly 100,000 appeals were filed. It would be impossible for just 15 board members to actually consider them; instead, the board likely plans to continue issuing only decisions that will further restrict immigrants’ rights.
Many (though not all) of the board’s cursory denials will be appealable for an additional $600 to a federal appeals court. Curtailing meaningful review by the board would overwhelm the federal courts. Immigrants whose appeals are pending there would be vulnerable to arrest, detention, and deportation by Immigration and Customs Enforcement (ICE) unless the board or a federal court issues a stay.
New precedential opinions curtail due process and other rights.
Since Trump returned to office, the board has issued numerous decisions that significantly curtail immigrants’ substantive and procedural rights. All but one of the 87 decisions narrow the rights of immigrants (the one exception involved a case in which DHS didn’t even show up for the hearing), and none provide immigrants with guidance about what it would take to prevail in similar cases.
Some of these decisions impose procedural restrictions that undermine immigrants’ ability to have a fair day in court. For example, the board held in September 2025 that immigration judges may pretermit — that is, dismiss — asylum applications without allowing the applicant to testify about the details of the claim if there are no factual issues in dispute and the initial application does not establish eligibility for asylum on its face. A month later, the board cleared the way for immigration judges to pretermit asylum cases without hearings when DHS argues that applicants could have applied for asylum in a third country.
In the wake of those two opinions, DHS rapidly increased its requests to pretermit, from fewer than 1,000 in September 2025 to more than 20,000 in January 2026 and more than 17,000 in February. It has since reportedly instructed its attorneys to no longer file new motions for third-country deportations, but it is not clear that this policy change will be permanent, and pending motions may still be pursued. Asylum seekers often come to the United States with few resources and prepare their applications without the help of attorneys, significantly diminishing their ability to present a sufficient legal claim when they file their initial applications. Now many of them may be deported to the countries they fled or to third countries to which they have no ties without their cases being considered.
Breaking from decades of statutory interpretation, the board also ratified a thinly reasoned DHS policy memo that puts even immigrants who have been in the country for years and have no criminal history into an expedited removal process, requiring them to be held in detention even if they have permission to live and work in the country or are awaiting a hearing. Thousands more immigrants with no criminal history are now being detained, inundating federal district courts with habeas corpus petitions challenging improper detentions. Judges across the ideological spectrum have rejected the board’s statutory interpretation more than 3,000 times and continue to order the release of immigrants on constitutional grounds. While a district court in California certified a nationwide class and declared the policy illegal, that order was stayed on appeal, and the U.S. Courts of Appeals for the Fifth and Eighth Circuits have endorsed the administration’s mandatory detention scheme. That will galvanize ICE to transfer detainees to those circuits quickly, before they have had a chance to file habeas petitions where they were arrested or first detained, and will further swamp district courts with habeas petitions.
The attorney general is using an obscure procedural tool to compromise the board’s impartiality.
The board has long faced challenges to its independence because it is situated within the executive branch. The attorney general has the statutory authority to interpret immigration law, which regulations delegate to immigration judges and the board. While those regulations require DOJ adjudicators to be impartial and prevent supervisors from dictating the outcome of individual cases, they also allow the attorney general to review individual cases and issue precedential opinions.
This process blurs the line between enforcement, which is often driven by the president’s policy priorities, and adjudication. In the criminal justice system these functions are kept separate so that judges can be neutral, independent arbiters of the law. In the world of immigration, though, the attorney general is both the nation’s top cop and a judge. Moreover, the attorney general’s decisions are often issued without briefing, notice to the public, or other measures that would increase confidence that the process is fair.
As attorney general, Pam Bondi used this authority to substantially restrict immigrants’ access to relief, especially asylum. In one case, Bondi made it harder for asylum seekers fleeing domestic violence — mostly women and children — to establish eligibility for asylum. In a decision involving an asylum seeker fleeing violence from gang members, she narrowed applicants’ ability to establish that membership in a family unit or kinship-based group could be the basis for persecution. Both cases fly in the face of long-standing immigration law holding that asylum may be established on the basis of persecution by private actors when a government is unwilling or unable to protect its people from harm.
Before the first Trump administration, the attorney general intervened in cases infrequently. During the first Trump administration, Attorneys General Jeff Sessions and William Barr intervened much more often, and Biden administration attorneys general in turn undid some of those opinions. Their ping-ponging opinions suggest that attorneys general, who traditionally reserved the right of review for clarifying legal interpretations, now see it as an opportunity to implement policy changes through a relatively quick process that does not require solicitation or consideration of public comment.
Bondi and her acting predecessor also designated more than three dozen board decisions for publication days or weeks after they were issued, often too late for an immigrant to appeal it to a federal court. Generally when the board considers publishing a decision, the parties have an opportunity to fully brief the case, interested parties have a chance to file friend-of-the-court briefs, and the parties may request oral argument. Designating opinions as precedential after they have already been decided circumvents that process and creates binding precedent without notifying the public or even the individual immigrant of that possibility.
In the background is a president who has exercised control over the DOJ in ways unheard of since post-Watergate reforms aimed to put distance between the White House and federal law enforcement. It has become nearly impossible for Justice Department adjudicators to maintain even the appearance of independence.
The board operates a shadow docket.
Just as the Supreme Court now routinely hands down high-stakes decisions on its emergency docket — the so-called shadow docket — without extensive briefing, hearings, or explanations of its reasoning, the board likewise issues tens of thousands of unpublished decisions each year. These thousands of decisions make up the “vast majority” of the board’s decisions but provide little guidance. They may be issued by a single board member, frequently provide little if any analysis, and often reach conclusions inconsistent with other decisions. Although recent litigation requires the board to make some of its unpublished decisions available to the public, the web page used for this purpose is not easy to search and opinions are posted on a significant delay, stymieing immigrants’ understand of the board’s jurisprudence.
Combined with the dearth of published opinions that provide any guidance about how to establish a defense against deportation, this leaves immigrants and their advocates in the dark. The long-standing lack of transparency is incompatible with the rule of law.
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Instead of being an impartial tribunal, the Board of Immigration Appeals has become a judicial facade behind which there is little meaningful review of individual cases or guidance for immigrants and their advocates. Attorneys general and the board have undermined the principles of fairness and due process and increased the risk that immigrants will be detained and deported with no opportunity to contest the process.
Other than the U.S. Supreme Court, the board is the only court that provides uniform interpretation of immigration laws. It should operate more like other courts: Immigrants filing appeals must have reasonable time to obtain counsel and prepare appellate arguments, the fee should be reduced significantly and waived for those who cannot pay, and the board should provide individualized review of the arguments and evidence in each case. And all decisions should be made public and searchable — with immigrants’ identifying information redacted where necessary.
Congress, meanwhile, should move the immigration courts and the board out of the executive branch and establish them as proper Article I or Article III courts, in which judges can exercise truly impartial review. Adjudicators must be independent from executive interference so that immigrants can have their day in court.
Neema Jyothiprakash coauthored this brief while serving as the Brooks Burdette Fellow at the Brennan Center for Justice.
