Kangaroo Immigration Courts Become Even More Kangarooish
A new government policy empowers immigration judges to dispense with hearings and just go right ahead and order people deported.
I have always found U.S. immigration courts to be little better than kangaroo courts* — stage sets for show trials with no rules of evidence presided over by fake judges empowered to make real decisions that can lead to life-or-death outcomes.
As retired Immigration Judge Dana Leigh Marks accurately quipped to John Oliver a few years ago, immigration courts are hearing “death penalty cases in a traffic court setting.”
Now the Department of Justice (DOJ) has issued a policy memo advising that in cases where a person asserts a claim of asylum as a defense to deportation, immigration judges can simply order the person deported without a hearing if the judge determines — solely based on the written application for asylum — that the asylum claim has no merit.
Call me crazy, but I thought that was what a hearing was for. Clearly I’m naive.
Fake Immigration Judges
I made reference to “fake judges” above and that may sound harsh, but there is actually some truth to it.
Formerly called “special inquiry officers,” immigration judges do carry the title of “judge” now, although even the memo I am discussing in this article calls them “EOIR adjudicators” — the Executive Office for Immigration Review (EOIR) being the sub-agency within the DOJ that actually employs these so-called judges.
When I started practicing immigration law, the judges and the lawyers representing the government were even part of the same federal agency — namely, the Department of Justice — begging the question of how an immigrant could possibly get a fair trial.
It is also worth noting that, although the consequences of immigration court rulings can be as serious as criminal convictions (if not more so), there is no right to counsel in immigration court proceedings. Instead, people facing deportation are merely granted the “privilege” of legal representation at their own expense.
Like my blog? Click through to the Substack website or app and give me a like, leave a comment or re-stack my post.
Mind you, I have met a number of dedicated, well-respected immigration judges (such as the aforementioned Judge Marks) over the years, and do not mean to tar them all with the same dirty brush. But even once the lawyers prosecuting immigration cases were moved from DOJ to the Department of Homeland Security (DHS), the integrity of the immigration court system has continued to be in question.
As Dan Kowalski has pointed out more than once in his Involuntary Departure newsletter, immigration judges and even members of the Board of Immigration Appeals (BIA) — the administrative appellate body to which someone ordered deported can appeal that decision — are “at will” employees of the Department of Justice, and must bend to the agency’s will if they wish to keep their jobs.** They can be prevented from exercising independent judgment and their decisions can be overturned by their superiors within DOJ.
The point is that the odds are already stacked against any immigrant appearing in immigration court. With this new policy, the odds have just become immeasurably worse.
Import of New “No Hearing Needed” Policy
The new policy memo provides as follows:
EOIR adjudicators have a duty to efficiently manage their dockets. See, e.g., 8 C.F.R. 1003.10(b). It is clear from the almost 4 million pending cases on EOIR’s docket, that has not been happening. Accordingly, this Policy Memorandum (PM) makes clear that adjudicators are not prohibited from taking—and, in fact, should take—all appropriate action to immediately resolve cases on their dockets that do not have viable legal paths for relief or protection from removal….
EOIR’s interpretation of applicable law is that adjudicators may pretermit legally deficient asylum applications without a hearing. Current regulations require a hearing on an asylum application only “to resolve factual issues in dispute.” 8 CFR § 1240.11(c)(3). However, no existing regulation requires a hearing when there are no factual issues in dispute, including when the facts underlying the legal claim for asylum are undisputed, but the claim itself is legally deficient.
Many people facing deportation cannot afford a lawyer, and have to figure out on their own how to fill out an application for asylum. Others may hire inexperienced or unscrupulous lawyers, or non-lawyers who hold themselves out as “notarios,” who submit bare-bones applications to meet a deadline or to qualify the foreign national for a work permit.
It shouldn’t need to be said, but the purpose of a hearing is to resolve factual issues, set forth legal arguments, give the defendant or respondent the opportunity to testify on their own behalf, provide supporting evidence and witnesses … all of the hallmarks of the so-called American system of justice.
Imagine if we were talking about criminal court. Imagine a prosecutor brings charges against you and a trial date is set. You hire a lawyer who submits a pre-trial brief that the judge decides is without merit. There are more facts behind the incident that led to your arrest that you have not yet had an opportunity to flesh out with your lawyer, much less in court where the judge will determine your fate. (And in immigration court, there are never juries, only a judge, so forget all of that jury-of-your-peers nonsense.)
But the judge reads your lawyer’s brief, and decides that there are no undisputed facts to be resolved, and that it is clear that you have no legal defense to the charges. He decides that you are guilty as charged, and cancels the scheduled trial.
Now imagine that the possible penalties for the crime with which you are charged include life imprisonment or even the death penalty. (Keep in mind that some asylum seekers literally fear for their lives if they are deported back to their home countries.)
Does this all seem fair? Is this justice?
First they came for the immigrants … but any one of us could be next.
* Curious about the origin of the expression “kangaroo court,” I learned that the term came about to describe frontier judges who would “hop” from one town to another, with little regard for making fair rulings.
** It should be noted that immigration judges used to be part of a union — with collective bargaining rights and certain protections against being fired without cause — but the Federal Labor Relations Authority decertified the union in 2020. The DOJ issued a memo in February 2025 confirming that immigration judges can be fired at will.
Attorneys representing people, make a record. This new order, without any notice to the respondent would be a violation of the statute and the existing regulations. It is not a fair procedure for those people who are unrepresented. Even the Supreme Court in evaluating motions for summary judgment has said that courts must give the opposing party an opportunity to respond and present evidence. And even if the court is ruling as a matter of law, judges know they must give the parties an opportunity to submit evidence, make legal arguments, and build the record. To the IJ's of the world, don't fall for this pressure. Give notice to the parties and set a briefing schedule.
Thanks for the mention! 🗽