New BIA rule is the last straw - Our nation needs an independent immigration court
The Trump administration has been consistently losing in federal court. But there’s one court where the administration has full sway — the Executive Office for Immigration Review (EOIR), which manages the nation’s civil immigration courts and “appellate” structure, the Board of Immigration Appeals (BIA).
Attorney General Pam Bondi, under the direction of non-lawyer Stephen Miller, has already eroded what semblance of due process existed in the immigration courts, instructing judges to summarily deny bond motions and keep immigrants in “civil detention” indefinitely. Now the right to appeal is being gutted, under a new regulation that would allow a single “judge” within the BIA to summarily dismiss a case on appeal, unless the entire panel of “judges” votes to hear the case. This will effectively eliminate appeals for immigrants. In the rare cases where an immigration judge actually grants asylum, or makes some other “positive” decision for immigrants, the government will still have the right to appeal. The Board will likely agree to hear the case, in order to rule against the individual.
“This is the very definition of stacking the deck against your opponent, and this is why the U.S. immigration courts must be removed from the Executive Branch,” said Lynn Tramonte, Executive Director of the Ohio Immigrant Alliance. “Stephen Miller cannot completely eliminate the Board of Immigration Appeals without action by Congress. Instead, his plan is to keep the Board in place to rule against immigrants who win in the lower courts, while denying people who lose their cases the opportunity for a second look. Courts should be independent from political direction. Our immigration courts need to be completely separated from the Executive Branch. That’s fundamental to fairness and due process. Finally making the immigration courts into an independent judiciary is long overdue. Congress must act, today. Anyone who argues against that simply wants to keep an unfair system in place.”
The interim final regulation was published in the Federal Register on February 6, 2026. The public can offer comments to the rule until March 9, 2026. Comment here.
OIA’s Six-Part Research Series Reveals Breathtaking Unfairness in U.S. Immigration Courts
As the Ohio Immigrant Alliance explained in its groundbreaking report, “The System Works as Designed: Immigration Law, Courts, and Consequences”:
The immigration courts are housed under the Department of Justice; they are not independent courts. Immigration Judges are not independent jurists, but employees of the Attorney General who is responsible for evaluating their performance, easing or adding to their administrative burden, and telling them how to rule in cases through a process called “certification.”
The political branch has total control over decisions made by these so-called “courts” and “judges.” That is just one of many features of the immigration court system that preference the government over respondents (people with cases in immigration court). “The U.S. immigration courts were designed to offer the illusion of justice, while failing the people they purport to protect,” we wrote in our report:
Dysfunctional elements include:
A quasi-judicial structure that answers to the U.S. Attorney General in the Executive Branch and is not an independent judiciary; is blatantly influenced by ideology; and promotes quantity over quality decision making.
Power imbalances, such as the fact that the government is represented by attorneys 100% of the time, while immigrants often argue their cases without a legal guide. Detained immigrants are forced to “attend” their hearings via grainy video feed, while judges and counsel are together in courtrooms miles away. Yet immigration judges frequently deny requests for expert witnesses to appear remotely, citing challenges with communication and credibility. The deck is stacked.
Also, by detaining someone in jail for the duration of their civil immigration case, the government makes it harder for them to get a lawyer to help. The government is also using the psychological, financial, and physical toll of detention to try to break someone’s spirits and get them to give up.
Subjective “credibility determinations,” rife for bias and abuse. A case can be denied based on a judge’s feeling about the immigrant’s testimony, not facts. This is the barn door through which all manner of ignorance, bias, and ideology storm in.
Legal landmines make it harder for people who qualify for asylum to receive it, such as the one-year filing deadline; illogical definition of material support to terrorism; and the Biden asylum ban. Differing standards of accuracy. Immigrants may be furnished interpreters who speak the wrong dialect. Judges and DHS attorneys may make inaccurate statements about an individual's evidence or the political conditions of their country. The hearing transcripts can be riddled with gaps instead of key facts. Yet life-altering decisions are made based on this record, and an immigrant has little to no opportunity to object, correct, or explain.
The Real-Life Consequences of a Rigged System
The consequences of this structure is the fact that many people who qualify for immigration status under laws written by Congress are denied this status in our nation’s immigration courts — and sent back to torture and death. The Ohio Immigrant Alliance’s case study, “Scarred Then Barred: Immigration Courts Harm Black Mauritanian Refugees,” outlines numerous examples of people who meet the definition of a “refugee” under international and U.S. law, but were still denied protection in the U.S. immigration courts.
“Judges’ accusations of ‘lying’ and ‘fraud’ are often based on bias, not evidence. They fail to understand the country’s political history and government-issued identity documents, making decisions based on false assumptions. Migrants often have to present their cases without a legal guide, while the government is represented every time. Once a person is deemed ‘not credible’ by an immigration judge, appellate judges tend to defer to that finding, no matter how wrong the reasoning may be,” we wrote.
The experiences outlined in OIA’s report are not unique to Black Mauritanians. To meet the stated goal of humanitarian protection, the U.S. immigration laws and courts need a redesign at the roots. Our report highlights recommendations for building a system based on fairness from the Mauritania TPS Working Group, Ohio Immigrant Alliance, Asylum Seeker Advocacy Project, and Peter L. Markowitz’ paper, “A New Paradigm for Humane and Effective Immigration Enforcement.”
Listen to the Real Experts — People Who Navigated this Failed System
The capstone report in our six-part research series, “Behind Closed Doors: Black Migrants and the Hidden Injustices of U.S. Immigration Courts,” adds context and recommendations from people who have been through the system themselves. It was authored by Dr. Nana Afua Y. Brantuo, PhD, who led the multi-part project.
A common theme among people OIA interviewed is that their cases were never actually heard in court. Prosecutors and judges were allowed to make wildly inaccurate claims about them, without evidence. They also required evidence from them that is simply unobtainable, like a brother’s death certificate from a persecuting government. Judges ruled that a respondent lacked “credibilty” for specious and even racist reasons. Aicha, a mother of four, said the government should “just give us a chance to explain ourselves and to say why we came here, what we want to do in here. That's it.”
“I thought America was better than this. I thought America was a country that respects human rights,” said a Black immigrant interviewed for report.
“Despite qualifying for asylum or other forms of immigration status under the law, Black migrants are repeatedly failed by a system that was not designed to protect them. The U.S. immigration courts offer the illusion of justice, nothing more,” said Demba Ndiath, Advocacy Director of the Ohio Immigrant Alliance, who has accompanied many Black immigrants with cases in the U.S. immigration courts.
Ndiath and Maryam Sy, OIA’s Organizing Director, helped “Behind Closed Doors” researchers interview immigrants in a language of fluency. Separately, Sy interviewed 255 people for “Broken Hope: Deportation and the Road Home,” a book published by the Ohio Immigrant Alliance and Suma Setty with the Center for Law and Social Policy.
After interviewing hundreds of migrants who had been through immigration court, detention, and deportation, said Sy, “These stories really stayed with me for months. Black immigrants opened up about their immigration journey and how their hopes and dreams were shattered. Their pain, their strength, everything they’ve been through. It’s not just paperwork or court dates, these are real people, and they deserve to be treated with basic dignity and fairness. I hope that this report brings awareness and shifts the narrative and the perception many have about Black Immigrants. I hope it informs policy makers and advocates about the past and present struggles of Black Immigrants in the United States.”
Continued Ndiath, “Many immigrants come to the United States with dreams, resilience, and a desire to contribute to the communities they join. Their experiences, shared in this report, are a reminder that our immigration system must reflect the values of fairness and justice. We must build a system that sees their humanity and recognizes the positive impact immigrants make across this country.”
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