How Immigration Courts Work: Backlog, Asylum, and Executive Power

One of the most important and least understood facts about US immigration courts is that they are not federal courts in the constitutional sense. Federal district courts, circuit courts, and the Supreme Court are Article III courts — created by Congress under Article III of the Constitution, with judges who have lifetime tenure and salary protections. Immigration courts are Article I/executive branch administrative courts, operating within the Executive Office for Immigration Review (EOIR) under the Department of Justice.

This structural difference has major practical implications:

• Immigration judges are DOJ employees, not independent judges. They can be directed, reassigned, or fired by the Attorney General. The AG can also issue binding precedent decisions that immigration judges must follow. This gives the executive branch significant control over immigration court outcomes.
• No right to appointed counsel: Unlike criminal defendants, immigrants in removal proceedings are not entitled to a government-appointed attorney, even if they face deportation, even if they are detained, and even if they are children. Studies show that immigrants with legal representation are dramatically more likely to win their cases.
• DHS as prosecutor: The Department of Homeland Security (specifically ICE’s Office of Principal Legal Advisor) represents the government in removal proceedings — meaning one branch of government (DHS) presents cases to another branch of government (EOIR/DOJ) with the courts themselves inside the executive branch.
• Appeals go to BIA, then federal circuit courts: Decisions can be appealed to the Board of Immigration Appeals (also within DOJ), and then to the relevant federal circuit court of appeals. Only at the circuit court level do genuinely independent federal judges review immigration decisions.

The Trump administration’s second term has pursued an aggressive immigration enforcement strategy, much of it through executive action rather than legislation. Key actions and their legal status include:

• Remain in Mexico (MPP): The Migrant Protection Protocols, which require asylum seekers to wait in Mexico while their US immigration cases are adjudicated, was reinstated by executive action. Courts have issued injunctions; the policy’s implementation has been inconsistent depending on court orders in effect at any given time.
• Third Country Agreements: Agreements with Guatemala, El Salvador, and Honduras designating them as “safe third countries” that asylum seekers must apply in first were challenged in court. The legal status of these agreements has been contentious.
• Deportation flights and alien enemies act: The Trump administration invoked the Alien Enemies Act of 1798 to conduct deportations of alleged Venezuelan gang members without standard removal proceedings. Multiple federal courts issued injunctions, finding the use of the 18th-century wartime statute impermissible in peacetime domestic immigration context. The Supreme Court weighed in with a partial ruling.
• Asylum ban at the border: Executive orders restricting asylum claims at the southern border have been repeatedly challenged and modified through court orders. The administration has argued it has broad executive authority to limit asylum; courts have found some limits exceed statutory authority.