The White House declared this week that the “Era of Amnesty Is Over: President Trump Restores Rule of Law to Immigration Court”, as both immigration judge (IJ) backlogs and asylum grants decline. That same day, the New York Times published an article, “How Trump Purged Immigration Judges to Speed Up Deportations”, making many of the same points. Here’s where the two analyses converge — and the very big points the Times missed.
What IJs Do
With (notable) exceptions, DHS cannot deport aliens from the United States without first obtaining an “order of removal” issued at the end of removal proceedings conducted under section 240 of the Immigration and Nationality Act (INA).
IJs — administrative adjudicators within DOJ’s Executive Office for Immigration Review (EOIR) — conduct the trial-level portion of those section 240 removal proceedings, and the hearings themselves can be broken down into two stages.
In the first stage, the IJ reviews the Notice to Appear (NTA), the civil charging document filed by DHS (which is akin to a complaint or indictment in criminal proceedings) to determine whether the alien (the “respondent”) is removable as charged.
Most respondents concede removability to move to the second stage of those proceedings, where the IJ determines whether the respondent is eligible for some protection, immigration benefit, or waiver (collectively: “relief”) that would allow the removable respondent to remain in the United States.
The most common form of relief respondents seek in removal proceedings is “asylum”, a humanitarian protection provided under section 208 of the INA. Of the nearly 3.8 million pending cases in the immigration court backlog, 2.4 million-plus (63.3 percent) involve an asylum application.
To be granted asylum, a respondent must show either “past persecution” or a “well-founded fear of persecution” on account of the applicant’s race, religion, nationality, membership in a particular social group, or political opinion.
As the Times alludes to, claims premised on issues “such as poverty, climate change and violence” generally won’t satisfy that asylum standard, as that protection is not a panacea for all the world’s issues.
Administrative and Judicial Review
If the IJ finds the respondent is removable as charged, and concludes the alien is not eligible for relief from removal, the court will issue an “order of removal”, directing the alien’s deportation.
Either the respondent or the government (represented by an attorney from ICE’s Office of the Principal Legal Advisor or OPLA) may, by regulation, appeal the IJ’s decision to yet another EOIR tribunal, the Board of Immigration Appeals (BIA).
If the respondent strikes out at the BIA, he or she may file a petition for review under section 242 of the INA with the U.S. circuit court having jurisdiction over the place where the IJ issued the removal order to review that decision. The government’s only recourse is to ask the attorney general to review the case.
Delays and Detention
As the Supreme Court has noted, “in a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States”.
For that reason, non-detained respondents are more likely than ones in ICE custody to delay removal orders by seeking “continuances” of their IJ removal proceedings, appealing orders to the BIA, and filing petitions for review with the circuit courts.
In mid-2025, DHS determined that aliens who entered illegally are not eligible for release from ICE custody under a congressional detention mandate in section 235(b)(2)(A) of the INA, reversing nearly 30 years of contrary policy.
Or as the Times puts it, “One of the administration’s most significant changes has been denying bond to many immigrants, as those in custody are more likely to accept deportation.”
The BIA affirmed that DHS policy change in its September opinion in Matter of Yajure Hurtado, ruling IJs lack authority to grant bond to respondents who entered illegally, prompting 18,000-plus aliens who have been denied bond to file habeas petitions in U.S. district courts seeking release from ICE custody.
The Times referenced those cases in its article, stating: “Many detainees have gone to federal court to challenge their detentions. In those courts, judges have repeatedly ruled that the detainees had been unlawfully locked up. The issue could reach the Supreme Court.”
True, but what the Times omits is that the two courts of appeals that have considered DHS’s detention policy shift, the Fifth and Eighth circuits, have, as Politico puts it, “blessed the Trump administration’s policy of locking up the vast majority of people it is seeking to deport without a chance for bond”.
That’s kind of a salient point, and one that suggests DHS’s new policy isn’t as harsh as it may sound.
The Role of Immigration Judges
In its 1977 opinion in Lopez-Telles v. INS, the Ninth Circuit made an observation that cuts to the quick of those who, like me, have been or are IJs:
Immigration judges, or special inquiry officers, are creatures of statute, receiving some of their powers and duties directly from Congress ... and some of them by subdelegation from the Attorney General. ... These statutes and the regulations implementing them ... contain a detailed and elaborate description of the authority of immigration judges. [Citations omitted.]
“Creatures”, indeed, but in any event the current immigration court harkens back to the 1890s, when inspection officers at the ports would assess whether specific arriving aliens should be admitted to the United States, and three-member “Boards of Special Inquiry” would review those decisions.
When the INA was first enacted in 1952, those boards were replaced by the “special inquiry officers” (SIOs) the Ninth Circuit referenced, who would determine individually whether specific aliens should be deported or not.
SIOs became IJs by regulation in 1973 (when they were still employees of the then-Immigration and Naturalization Service, or INS), and a decade later EOIR was spun off as an office independent of INS to oversee those IJs and the BIA (itself created in 1940).
Section 101(b)(4) of the INA reflects the current position IJs play as subordinates to the attorney general in the DOJ structure, defining the term “immigration judge” as:
an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including [removal proceedings under section 240 of the INA]. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the [INS].
The last part is vestigial, but as per Lopez-Telles, while IJs are designated by section 240 to conduct removal proceedings, they ultimately exercise the authority Congress granted the attorney general in section 103(a)(1) of the INA to make determinations and issue rulings in cases involving removable aliens.
Prior to the Obama administration, few sitting IJs were removed from the bench, and then generally only for gross misconduct or wildly intemperate behavior.
Since then, however, various administrations have discharged IJs without any apparent stated cause, a process that has accelerated under Trump II, hence the headline of the Times article.
Countless reporters and outlets have asked me about those IJ “firings”, but because I am not privy to employment decisions made within DOJ, know little about federal employment law, and have never personally met any of those judges, I have no insight to offer.
That said, as both Lopez-Telles and section 101(b)(4) of the INA make clear, IJs exercise the attorney general’s authority under the attorney general’s “supervision”, and logically, therefore, the attorney general retains the power to tell them how to use it, subject to only due process concerns.
Moreover, while the titles and trappings may have changed over the past 130 years, the primary duties of SIOs cum IJs haven’t significantly changed; they are simply there to determine which aliens should be admitted to the United States, who should be allowed to remain, and which ones must leave.
Deportation Orders Up, Asylum Grants Down — but Why?
While the White House doesn’t mention the IJ firings, what its press release and the Times’s article have in common is that they both report that immigration court removal orders are up and IJ asylum grants are down and, in the latter case, use the same chart to map the decline.
Here’s how the White House describes that decline: “Under President Trump, asylum is now granted in just 7 percent of cases — a historic low, plummeting from over 50% rubber-stamped under Biden.”
And here’s the “Gray Lady’s” take: “The number of people being ordered deported has risen sharply, while judges have approved asylum claims in fewer than 10 percent of cases this year, the lowest rate for which data is available.”
What neither does, however, is explain why IJ deportation orders are up and why asylum grants are down.
The answer to both questions is “Biden”, or more specifically two Biden-era immigration policies.
“Catch and Release” of Border “Asylum Seekers”
The first is what has been derided as the Biden administration’s “catch and release” policy for illegal migrants apprehended at the Southwest border.
As I have explained in the past, section 235(b) of the INA requires DHS to detain all “applicants for admission” (including illegal entrants) at the borders and the ports who appear to be inadmissible to the United States.
Over its four-year run, however, Biden’s DHS apprehended millions of inadmissible aliens at the Southwest border and at ports there and nationwide but released (by my conservative estimate) 88.5 percent of them in lieu of detention and in violation of the INA.
Worse, however, Biden’s DHS subjected hardly any of them to “credible fear” screenings, the key tool Congress gave the department to assess whether inadmissible aliens at the borders and ports might have valid asylum claims, before they were released.
Instead, the last administration treated them all as “asylum seekers”, regardless of whether they had come illegally seeking asylum or had suffered or feared persecution.
Nearly all of those aliens were funneled into IJ removal proceedings, which is why IJ dockets swelled from just over 1.5 million pending cases in FY 2020 to nearly 3.9 million by the end of FY 2024 — a 158-percent increase in just four years.
Not surprisingly, many of those Biden-era migrants never intended to either apply for asylum or appear for their removal proceedings, and consequently more than 306,500 of the nearly 485,500 removal orders IJs handed down in FY 2025 were issued in absentia, when the respondent failed to show up.
“Abandonments”
An untold number of those immigration court “no shows” had, however, filed asylum applications before they stopped going to court, and when they ultimately failed to appear, their applications were deemed either “abandoned” or simply “not adjudicated”.
Neither the White House nor the Times ever shows its math in achieving that “7 percent” asylum grant-rate figure, but EOIR’s own statistics suggest it’s likely correct.
In the first quarter of FY 2026, for example, IJs issued 3,250 asylum grants and 21,309 asylum denials — a 13 percent “grant rate” if grants and denials were the only two outcomes examined.
During that same period, however, 22,106 asylum applications were deemed “abandoned” (logically when the alien failed to appear), and when you add those abandonments to the denial total, the grant rate is 6.96 percent (3,250 grants in 46,665 decisions), which is “close enough” to 7 percent for government work, and apparently for the Times analysis, too.
If that was how the Times arrived at its “7 percent grant rate”, however, why didn’t the paper mention it? A large cohort of aliens who were denied asylum for failing to appear before IJs would seem to be a salient point in an article discussing how the IJ asylum denial rate has skyrocketed under Trump II.
“Quiet Amnesty”
While the impacts of that Biden catch-and-release/asylum-seekers policy may explain the increase in removal orders and asylum denials under Trump II, what explains the large number of aliens who were granted asylum during the last administration?
The answer can likely be found in what the House Judiciary Committee described in October 2024 as the Biden-era “quiet amnesty” policy.
As I reported in February, nearly one million pending immigration court cases involving facially removable aliens were either dismissed (613,493), terminated (242,473), or administratively “closed” (129,330) under a Biden-era “prioritization” policy premised on “equity”-driven “prosecutorial discretion”.
Many — if not most — involved aliens whose sole application for relief was asylum, but if their asylum claims had been valid, none would have agreed to dismissal, termination, or “administrative closure”; they would have remained in active removal proceedings to receive all the benefits that come along with an asylum grant.
That Biden-era “quiet amnesty” policy, in other words, artificially drove down the IJ asylum denial rate, though I will note that the IJ asylum grant rate in FY 2024 (President Biden’s last full year), was only somewhere between 45.7 percent (if you count only grants and denials) and 36.2 percent (if you include “abandoned” claims).
Again, however, the Times article never mentions the “quiet amnesty” in its reporting, though it likely would have been helpful to inform readers if it had.
Credit and Blame
Immigration judges are “judges”, but their role is best viewed through the prism of history as arbiters of whether aliens are allowed to remain or not. Don’t credit or blame them or Trump for the increase in deportation orders and the decline in asylum grants; the responsibility lies with the Biden administration, which created the immigration chaos both were left to control.