President Trump’s efforts to ramp up deportations have brought the immigration system into sharper focus. His administration is pushing for mass deportations, pressuring states to assist in enforcement, and cracking down on protests. As legal challenges to these increasingly aggressive policies unfold and new enforcement tactics emerge, many communities — especially Latinos — are grappling with a constantly shifting landscape of threats and uncertainty about their rights and safety.
In this interview, Brennan Center Senior Fellow Margy O’Herron sheds light on how the immigration system works, what has changed under the current administration, and what evolving challenges the system faces. O’Herron was a senior policy adviser on immigration issues at the White House during the Biden administration and served in the Department of Justice, where she managed the immigration portfolio at the deputy attorney general’s office and served on the Board of Immigration Appeals.
Gabriella Sanchez: As someone who has seen the immigration system from the inside, what is something that people would be surprised to learn?
Margy O’Herron: I think most don’t realize how hard it is to immigrate legally to the United States. In policy discussions, we hear people say that if someone wants to come here, they should “get in line” or “do it the right way.” But there really are only three legal paths to come live in this country: applying for authorization through a family member, through an employer, or for humanitarian reasons.
All of these have limitations. Many family and employment visas have yearly caps, and those haven’t increased to keep pace with the growing number of applicants. There are also caps on the refugee system, which permits people outside the country to apply for permission to enter and live in the United States for humanitarian reasons. President Trump just announced a 7,500-person cap for next year, a historic low.
There is a separate pathway to legalization for those already in the United States, which is another thing that some might find surprising. The asylum system is set up for people inside or at the border to request permission to remain in the country if they face persecution in their home country. But there are strict eligibility requirements, and the huge backlog of cases often forces asylum seekers to wait years to get a decision.
Sanchez: What is the Board of Immigration Appeals, and how do its decisions influence immigration enforcement?
O’Herron: The Board of Immigration Appeals is made up of about 15 members, known as appellate immigration judges, who review decisions made by judges in the country’s 73 immigration courts.
Most of the time, if the government wants to deport someone who has been in the United States for at least two years, it has to take the case to immigration court. These courts are part of the Department of Justice and give people a chance to argue why they should not be deported. For example, if Immigration and Customs Enforcement agents mistakenly arrest someone who is a U.S. citizen or valid visa holder, that person can show proof to the judge and avoid being deported.
After an immigration judge makes a decision, either ICE or the individual can appeal it to the Board of Immigration Appeals. Immigration judges are under pressure to hear and decide several cases a day, so it’s difficult for them to take the time to conduct a lot of research or detailed analysis. The board makes sure they applied the law properly.
Immigration judges across the country must follow the board’s decisions unless a federal court or the attorney general decides otherwise. Those decisions are also binding on other immigration officials, including border patrol agents, ICE agents and lawyers, and asylum officers.
Sanchez: How have circumstances for the board and immigration judges in general changed under the Trump administration?
O’Herron: Unfortunately, at least 100 immigration judges and appellate immigration judges have been fired by the current administration, about 14 percent of their total ranks. They weren’t told that they did anything wrong, just that it is within the president’s right to dismiss them. But that is not how their positions — which are all career federal jobs — have been viewed by previous Republican and Democratic administrations.
The administration has now started assigning military lawyers without any immigration experience to fill the vacant slots. The move is unprecedented and may not be legal. It also blurs the line between military personnel and civilians, a division that has been considered foundational to American democracy since the founding.
Additionally, a recent law makes it much more expensive to appeal an immigration judge’s decision, raising the fee for filing an appeal from $110 to $1,010 per person. That will create a two-tiered system of justice in which only people with money can exercise the right of appeal.
Sanchez: How has decision-making within the immigration system changed under this administration?
O’Herron: There is a shift in how discretion is being used, compared to how things worked before I left the government earlier this year.
One important group of decision-makers is ICE attorneys, who serve as prosecutors in immigration court. The Department of Homeland Security typically puts out guidance outlining its enforcement priorities, and prosecutors have some flexibility to make decisions within those guidelines.
During the Obama and Biden administrations, ICE attorneys had a lot of discretion to temporarily close or end cases. For example, if an American business owner had filed a visa application with DHS on behalf of an immigrant in deportation proceedings, it would make sense to pause their deportation case. This would free up court time for higher priority immigration cases, such as asylum claims or ones where the person has committed a crime.
Under the Trump administration, ICE attorneys are often using their discretion to ask judges to dismiss cases so they can instead place people into a process called expedited removal. This process offers fewer legal protections than standard immigration court proceedings and can result in deportation within days. For decades, expedited removal has only been used for immigrants who recently arrived in the United States, and the administration’s expanded use of it is currently being challenged in court.
Immigration judges are the other key decision-makers in the system. Existing regulations allow judges discretion in how they run their hearings and the decisions they make, and they can close or terminate cases under certain circumstances. But the director of the office that oversees immigration courts has issued a memo suggesting that this regulation isn’t lawful, which is a very unusual move because it circumvents the legal requirement for the public to get to comment on the change. Additionally, some immigration judges who left the Justice Department have said they were under a lot of pressure to issue rulings that favored deportation while working under this administration.
Sanchez: There are numerous videos showing immigration officers engaging in abusive or aggressive conduct, often without clear consequences. What checks exist to hold immigration officers accountable, and how well do those safeguards work in practice?
O’Herron: It is very challenging. Although there are lots of immigration officers who are treating immigrants with respect, every day, we see stories of people who are treated with unnecessary violence. People are being pulled from their cars and workplaces, zip-tied, thrown to the ground, and held in unsanitary and unsafe detention centers.
And the Supreme Court recently issued an order allowing ICE officers — at least for now — to continue arresting people based on their apparent race or ethnicity, speech, or job. Giving ICE the green light to stop people who fit the profile of a Latino immigrant, without any guardrails, may result in escalating abuses.
To check abuses, one option is to file a complaint with DHS itself. There are a few offices that process those complaints, including the Office of the Inspector General and the Office of Civil Rights and Civil Liberties. Unfortunately, the administration has cut a lot of the staff from the civil rights office, but filing complaints there would still keep a record of abuse that could put pressure on the government to rein in misconduct.
It also is possible to file lawsuits against individual officers for violating the Constitution or the law. Those suits are not easy to win, but they are an important check.
Political and public accountability also are critical. It has gotten harder to identify officers because so many are wearing masks, but the videos and stories of immigration officers acting unlawfully do make a difference. Telling elected officials what you are seeing and how it is affecting you and your community is an important way to advocate for change. And video and testimonials help other Americans realize exactly what is happening.
Sanchez: What part of the immigration system needs to be fixed most urgently?
O’Herron: I am very concerned about due process, which refers to the Constitution’s protection against the government taking anyone’s life, liberty, or property without following fair legal procedures.
We have already seen the administration try to undermine due process. As I mentioned earlier, ICE attorneys are diverting many immigrants to expedited removal, which makes it harder for people to defend themselves from deportation. The administration is also denying immigrants bond proceedings and has illegally invoked a wartime law to deport immigrants without a hearing.
These issues may get worse. For many years, funding for immigration enforcement has exceeded funding for immigration courts and the processing of lawful applications. The new funding bill that Congress passed in July supercharges that trend, giving ICE a 300 percent budget increase but limiting the increase in immigration judges to 14 percent.
So even though there will be a huge surge in enforcement and in the number of people detained for deportation, the government is not hiring anywhere near enough judges to process their cases. That means that untrained military lawyers may be asked to decide cases, people may stay behind bars for longer while immigration judges work through the backlog of cases, or people may not receive hearings at all.
Despite the Trump administration’s rhetoric about targeting the “worst of the worst” criminals, reports have found that its enforcement policies target many immigrants who have not committed crimes. Many entered the country lawfully or, in the case of those with temporary protected status, they had legal status that was then terminated by this administration. Even U.S. citizens have been arrested and detained.
The problems with the immigration system have developed over decades. The system has not had sufficient resources to meet demand, and immigration law is outdated and complex. Not everything can be fixed with funding, but the surge of resources could be an opportunity to make the system more efficient without compromising fundamental legal principles like fairness and due process.
Instead of a deportation-only approach, which sweeps in immigrants who entered or have lived in the United States legally, funding should also go toward screening for humanitarian claims like asylum, processing legal immigration applications, and holding immigration court hearings.
