How Immigration Courts Decide Deportation Cases

Courts That Aren't Really Courts

Walk into an immigration courtroom and you'll see a judge in a robe, a government attorney arguing for removal, and a respondent—often unrepresented—trying to stay in the country. It looks like a court. But immigration judges are not Article III judges with lifetime tenure and independence guaranteed by the Constitution. They are employees of the Department of Justice's Executive Office for Immigration Review (EOIR), hired and fired by the Attorney General. The same Attorney General whose agency prosecutes immigration cases also employs the judges hearing them. This structural tension has produced decades of controversy about the independence and consistency of immigration adjudication.

The Architecture of EOIR

The Executive Office for Immigration Review was established in 1983 when the Department of Justice reorganized immigration adjudication functions previously scattered across different agencies. EOIR operates approximately 700 immigration courts across the United States with roughly 700 immigration judges as of 2024—a number that has grown substantially but not kept pace with caseload growth.

The system processes two broad categories of cases:

• Removal proceedings: The government seeks to remove a noncitizen from the United States. These are formally adversarial proceedings with an ICE attorney arguing for removal and the respondent arguing for relief or contesting removability.
• Asylum-only proceedings: Conducted by EOIR asylum officers, not immigration judges, for certain categories of applicants who do not have the full range of relief available in removal proceedings.

EOIR is distinct from U.S. Citizenship and Immigration Services (USCIS), which adjudicates affirmative benefit applications like green cards and naturalization outside the adversarial context, and from Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), which handle enforcement.

The 3.5 Million Case Backlog

As of early 2024, the EOIR pending caseload exceeded 3.5 million cases—a record. In 2010, the pending docket was approximately 250,000 cases. The explosion reflects a combination of increased enforcement actions creating more cases, insufficient judgeships to process them, pandemic-related court closures, and surges in asylum seekers at the southern border.

A respondent filing for asylum today may wait five or more years before an initial hearing. During that wait, many receive Employment Authorization Documents allowing them to work legally. Some build families, businesses, and community ties. Then a court date arrives and a single hearing determines whether they stay or go.

The Removal Proceeding: Step by Step

Removal proceedings begin with a Notice to Appear (NTA)—a charging document issued by DHS alleging that the individual is removable under the Immigration and Nationality Act. Common grounds for removability include unlawful entry, overstaying a visa, and criminal convictions that trigger deportability.

The Master Calendar Hearing is the first appearance before an immigration judge. It is typically brief—five to fifteen minutes—and focuses on scheduling. The respondent enters pleadings (admitting or denying the NTA allegations) and the judge schedules an Individual Merits Hearing where the substantive case will be heard.

At the Individual Merits Hearing:

• The government must prove removability by clear and convincing evidence
• The respondent may apply for relief from removal—asylum, withholding of removal, Convention Against Torture protection, cancellation of removal, or adjustment of status
• The judge hears testimony, reviews evidence, and issues an oral or written decision
• Either party may appeal to the Board of Immigration Appeals (BIA) within 30 days

Relief Options: What Can Prevent Deportation

Being found removable does not always mean removal. Immigration courts can grant several forms of relief that allow a respondent to remain in the United States or to leave voluntarily rather than be formally removed.

Mandatory Detention: The Detained Docket

Not all immigration respondents await their hearings free. Certain categories face mandatory detention under the Immigration and Nationality Act regardless of flight risk or danger assessment—including those with aggravated felony convictions, certain drug offenses, and those apprehended crossing the border without authorization. The Supreme Court's 2018 decision in Jennings v. Rodriguez eliminated automatic bond hearings for those held under mandatory detention provisions.

ICE detained an average of roughly 37,000 people per day in 2023. Detained cases move faster—hearing dates within 60 to 90 days—but detainees often cannot access attorneys, gather evidence, or prepare effectively while in custody. Approximately 70% of detained respondents have no attorney, compared with about 40% of all immigration court respondents.

Appeals and Federal Court Review

A respondent who loses before an immigration judge can appeal to the Board of Immigration Appeals, which is also part of EOIR. The BIA can affirm, reverse, or remand cases. Parties losing before the BIA can then petition the relevant federal circuit court of appeals for review—at which point Article III judges with full constitutional independence examine the case.

Circuit court outcomes vary significantly by geography. The Ninth Circuit (covering the West Coast) has historically granted higher rates of immigration petitions for review than the Fifth Circuit (covering Texas, Louisiana, Mississippi). Attorney General certifications—a separate mechanism allowing the AG to refer BIA decisions to herself for review—have been used to set binding precedent without court process, raising separation of powers concerns among immigration scholars.

This article is for informational purposes only and does not constitute legal advice.