Immigration is at the center of U.S. politics. Arrests and raids, and protests against them, have rippled across the country. Federal and state courts alike are facing complicated questions about the government’s deportation authority. Some immigrants’ cases have ended up in immigration court. Although immigration lawyers are well acquainted with the particularities of these specialized courts, increased focus on immigration court activity has raised questions about the nature and scope of the immigration court system.
What are immigration courts?
Immigration courts are administrative courts within the U.S. Department of Justice. They hear the cases of noncitizens the government is trying to deport — or, in the terminology of immigration law, “remove” — from the country. They are separate from the courts that operate within the judicial branch, established under Article III of the U.S. Constitution.
There currently are about 3.5 million cases in immigration court. Given the huge potential caseload, the Department of Homeland Security, which decides which immigrants to target, historically has prioritized cases involving immigrants with criminal records. In 2021, for example, DHS issued guidelines prioritizing the arrest and removal of immigrants who were suspected terrorists, dangerous criminals, or recent border crossers. The Supreme Court decided those guidelines were an appropriate exercise of discretion, noting that “inevitable resource constraints” had necessitated the prioritization of removal actions for the past 25 years. On January 20, President Trump issued an executive order directing DHS to set new enforcement priorities. To date, DHS has not explicitly revoked the 2021 priorities but has ordered U.S. Immigration and Customs Enforcement to expand its use of expedited removal.
Who are the parties involved in immigration court?
Hearings in immigration court are conducted by immigration judges, who are employees of the Executive Office for Immigration Review in the DOJ. They are not subject to Senate confirmation, nor are they political appointees. They are lawyers hired through a competitive career hiring process and are appointed by the attorney general. Federal regulations give immigration judges the authority to exercise independent judgment, but they are supervised by a chief immigration judge who has significant authority over them, including the authority to evaluate their performance and to assign their cases.
In immigration court proceedings, a DHS attorney represents the government, serving essentially as the prosecutor. These attorneys are employees of the Office of the Principal Legal Advisor, a part of the ICE division within DHS. The head of that office is a political appointee, but its other attorneys are nonpolitical employees hired through a competitive hiring process.
Immigrants attend their immigration court hearings and have the right to an attorney. However, the government is not required to provide one, except in rare cases. This means immigrants must find and pay for their own lawyers or represent themselves.
What is a removal hearing?
Removal hearings are the primary procedure for determining whether noncitizens already in the country can be removed, although DHS has the discretion to use alternative procedures in some cases.
Removal hearings are similar to trials — there is a prosecutor and a judge — but there are important differences too. Removal hearings are civil, not criminal, proceedings, which means that immigrants don’t have the same rights as criminal defendants.
Removal hearings take place before a judge only; there is no jury. They are quite short. A full removal hearing about whether an immigrant is removable and eligible for a form of relief like asylum, for example, can be concluded in as little as two or three hours. Removal hearings may take place in person at an immigration court, or some or all of the parties may appear remotely via video conference. Removal hearings generally are open to the public and the press.
The government provides a translator for the hearing when needed, and hearings are recorded. In the vast majority of cases, immigration judges issue an oral decision in court at the end of the hearing, although in more complex cases they might issue a written decision later. If either party appeals, the government prepares a transcript of the hearing, which becomes part of the record of the case.
Who is entitled to a removal hearing in immigration court?
Most immigrants already present in the United States are entitled to a hearing in immigration court to determine whether they can remain in the country. No one — not even the president — can unilaterally revoke an immigrant’s right to a removal hearing.
DHS has discretion to place some immigrants already in the United States into an alternative process called “expedited removal.” For example, immigrants who within the last two years entered the country outside of a port of entry and without a visa or other permission from the government — known as having “entered without inspection” — can be subjected to expedited removal. DHS has significantly increased its efforts to shift immigrants into the expedited removal process, including by terminating parole programs and removal proceedings in immigration court and arresting immigrants at the courthouse. These actions are being challenged.
The expedited removal process allows only for a short interview by an immigration officer, who has the authority to issue an expedited removal order. Generally, there is no opportunity for an immigrant to collect evidence or consult with a lawyer, and DHS removes people as soon as it can make travel arrangements, often within hours or days.
If the immigrant establishes a credible fear of persecution during the expedited removal interview, the immigrant can apply for asylum, withholding of removal, or protection under the Convention Against Torture before an immigration judge.
The Trump administration has also invoked the Alien Enemies Act of 1798, a wartime authority that allows the president to detain and deport the natives and citizens of an enemy nation, to try to skip removal hearings and detain and deport Venezuelans who are alleged members of the gang Tren de Aragua. That invocation plainly violates the text and purpose of the law, however. Courts across the country have barred the government from continuing to rely on the authority for detentions or deportations.
Immigrants who enter the United States with a visa or other status or who are lawful permanent residents are entitled to removal proceedings before they can be deported. In addition, many immigrants who entered the country without inspection have the right to a removal hearing. For example, immigrants who have been in the country for more than two years are entitled to a removal hearing, regardless of how they entered. Some of those immigrants have acquired another status after entering the country that allows them to live lawfully and work, such as Temporary Protected Status or Deferred Action for Childhood Arrivals (more commonly known as DACA).
How does an immigrant know if they are going to have a removal hearing?
Once DHS makes the decision to seek to remove an immigrant, the law requires it to create a document called a “notice to appear.” The department gives a copy of that document to the immigrant and files it with the immigration court. The notice to appear informs noncitizens why the government is trying to remove them and what their rights are.
What issues can be raised in immigration court?
In removal proceedings, the immigration judge must first address any claim that the individual DHS seeks to remove is a U.S. citizen. Next, the immigration judge determines if the immigrant is removable under the law for the reasons the government claims. For example, the government could argue that an individual did not have permission to enter the country or that the individual has committed an offense that is a ground for removal.
Immigrants can challenge the accuracy of the government’s allegations. They can argue, for example, that they did not commit the crime alleged. Individuals facing removal can also assert defenses that provide a legal path to remaining in the United States. For example, they could demonstrate a legitimate fear of persecution if returned to their home country that makes them eligible for the relief of asylum, withholding of removal, or protection pursuant to the Convention Against Torture.
A highly publicized removal case is that of Kilmar Abrego Garcia, a Maryland construction worker deported to El Salvador in March 2025 to be detained in that country’s notorious CECOT prison. After a removal hearing in 2019, an immigration judge found that although he was removable and had not applied for asylum in time, he could not be sent back to El Salvador because of threats he had received from gang members when he lived there. Even so, the government sent him to El Salvador without any further hearing. From the Salvadoran prison, Abrego Garcia challenged his removal. On an emergency appeal, all nine U.S. Supreme Court justices held that the government was required to facilitate Abrego Garcia’s release from custody in El Salvador and to ensure that his case was handled as it would have been had he not been improperly removed. The United States has now brought Abrego Garcia back but has charged him with a criminal offense.
In addition to protection from persecution and torture, there are many other forms of relief that an immigrant can request and an immigration judge can grant in immigration court. A common form of relief is adjusting the immigrant’s status to lawful permanent residence based on an approved visa filed by a family member or an employer. Another form of relief, cancellation of removal, is available to long-term residents whose removal would cause their family members in the United States to suffer significant hardship.
The burden of proof is on the government to show an immigrant is removable in cases in which the immigrant entered the United States after inspection by an immigration officer, such as with a visa or as a refugee. If an immigrant entered without inspection — by crossing the border between ports of entry, for example — the immigrant has the burden of proof of establishing that they should be admitted. Regardless of how immigrants enter the United States, they have the burden of proof of establishing eligibility for relief.
What rights do immigrants have in removal hearings?
Because removal hearings are civil, not criminal, proceedings, immigrants in removal hearings have fewer rights than criminal defendants. Critically, immigrants have the right to a lawyer, but, with a limited exception, they have no right to a court-appointed lawyer. Immigrants must find and pay for their own lawyers. Notably, there is no specific exception for children, who also are responsible for finding and paying for an attorney. If immigrants are unsuccessful in finding a lawyer, immigration judges will proceed with the hearing and the immigrants must represent themselves.
Immigrants also have due process rights. Under the Fifth Amendment, “No person shall . . . be deprived of life, liberty, or property, without due process of law.” More than a century ago, the Supreme Court concluded in the 1896 case of Wong Wing v. United States that “person” in the Fifth Amendment includes “all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality” and that “even aliens shall not be . . . deprived of life, liberty, or property without due process of law.” The foundational principle that immigrants have Fifth Amendment due process rights has been reaffirmed many times, including in 1993, when Justice Antonin Scalia reiterated in Flores v. Reno that the Fifth Amendment entitles immigrants to due process of law in deportation proceedings.
A unanimous Supreme Court recently affirmed once more that immigrants in the country have a right to due process under the Fifth Amendment. The Court split on other issues in the case, but all nine justices agreed that even under the overbroad and controversial authority of the Alien Enemies Act, a wartime authority that the president has invoked to detain and remove certain Venezuelan nationals, detainees have the right to judicial review of questions of interpretation and constitutionality, as well as whether or not they fit within the category of people designated as alien enemies. All nine justices also agreed that, before the government removes them, immigrants detained under the Alien Enemies Act are entitled to notice within a reasonable time and in such a manner as will allow them to actually seek relief in a federal court with jurisdiction over the location in which they are detained. The Court did not, however, define what constitutes a “reasonable time,” and lower courts continue to grapple with that question.
The exact contours of immigrants’ due process rights in immigration proceedings have been extensively litigated over many decades in most if not all federal circuits. Issues include how much time an immigrant in removal proceedings must be given to find an attorney, the standard that attorneys must meet to provide effective representation, whether an immigration judge provided an immigrant a full and fair hearing, and the quality of language translation.
Beyond the Constitution, the statute requires DHS to notify immigrants of the reason it seeks to remove them and gives immigrants in removal proceedings the right to examine evidence against them, present evidence on their own behalf, and cross-examine the government’s witnesses. The immigration judge’s decision must be based only on the evidence introduced at the immigration hearing, and the government must keep a complete record of the testimony and evidence.
What law applies in immigration court?
There are 74 immigration courts throughout the country. The more than 700 immigration judges who serve in those courts are bound by the Immigration and Nationality Act, along with regulations promulgated pursuant to that statute. Immigration judges also are bound by published decisions by the Board of Immigration Appeals (an administrative body within the DOJ), the federal courts of appeals with jurisdiction over the case, and the Supreme Court. Historically, circuit courts deferred to the board’s interpretations, but a 2024 Supreme Court case significantly reduced the amount of deference courts should give to executive agencies.
The Federal Rules of Evidence do not apply in immigration court; immigration judges can admit any evidence that is material and relevant. Immigration judges and the Board of Immigration Appeals also do not have authority to rule on whether the regulations or other agency policies comply with the Administrative Procedure Act, the federal statute that regulates agency actions.
Although immigration judges can rule on constitutional questions, such as whether an immigrant has been afforded due process, the Board of Immigration Appeals has held that neither immigration judges nor the board may rule on the constitutionality of the Immigration and Nationality Act itself. An immigration judge in Louisiana invoked this rule recently when she said explicitly that she did not have the authority to rule on the constitutionality of the foreign policy charge against Mahmoud Khalil, a lawful permanent resident and former Columbia University graduate student arrested and detained by ICE. (A federal court judge subsequently ruled that the foreign policy justification ground likely is unconstitutional, but litigation in the case continues, including over whether Khalil should be released from custody).
Can immigrants appeal immigration judge decisions?
Either party may appeal an immigration judge’s decision to the Board of Immigration Appeals. The percentage of immigration decisions that are appealed fluctuates by year, but in the last two years, fewer than 10 percent of immigration judge decisions were appealed to the board. Immigrants also can appeal many board decisions — including decisions about whether they are actually removable for the reasons the government has given and whether their due process rights have been violated — to a circuit court of appeals, a federal court that is part of the judiciary branch and is separate from the DOJ’s immigration court system. The percentage of board cases appealed to circuit courts varies by circuit and year but generally is between 15 and 20 percent.
