Opinion: On Developments in Immigration Court and the Real Courts, Rule of Law Act of 2026
“’Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!’”
–Inscription on the Statue of Liberty
Bardia Memar, Esq.
The United States represents many things to many people. It is a shining beacon of hope for those who give up everything, voluntarily or involuntarily, for the chance at a better life; and it is a vile caricature of villainy for those caught in the crossfire of its mideast imperialist projects. Its people strive for it to embody the example of the former, always, yet time and again there is a certain ambivalence about how liberty and justice for all is defined in the letter of law.
Today, this ambivalence is on full display, as—among innumerable other things—the executive branch exercises unprecedented authority over immigration enforcement. As of today, approximately one-fifth of immigration judges have been replaced since January of 2025, with new hires widely advertised as being so-called “deportation judges.”[1] It does not take a lawyer to observe that this is in direct conflict with the intentions of Congress and of the American people when the Immigration & Nationality Act (INA) explicitly prescribes an immigration judge with the authority to adjudicate administrative claims for immigration relief—not to simply serve as a foundation to expedite deportation. This example is a microcosm of the extent to which the mission of the U.S. government’s immigration apparatus is being warped and removed from its originally-intended objective—and its moral core. No longer an impartial jurist, it is increasingly becoming a soulless assembly line for deportation orders for those without legal expertise.
Immigration counsel nationwide are observing increasingly hostile immigration jurisprudence by these judges as a result, and nowhere is this more clear than in the last 20 months of jurisprudence by the Board of Immigration Appeals (BIA), starting with the Matters of C-A-R-R- and H-A-A-V-, in which the BIA ruled that asylum applications deemed factually or substantively incomplete could be tossed out without further a merits hearing in favor of deportation. The Matters of S-S-F-M-, R-E-R-M & J-D-R-M-, K-E-S-G-, L-A-L-T, V-A-B-, L-A-D-, and S-E-M-Z- all narrowed the meaning of members of particular social groups applying for asylum. The Matters of Ibarra-Vega and Pinzon Rozo, tightened noncitizens’ ability to explore reliefs outside of immigration court. (Such reliefs can take years while modern immigration judges appear pressured to issue deportation orders as immediately as the law permits.) Most infamously, in Matter of Yajure Hurtado, the BIA severely curtailed noncitizens’ ability to procure bond, defying longstanding practices to exploit legal ambiguity on the scope of noncitizen detention under INA §235 & 236. Other decisions touching on topics such as third-country deportation, other asylum qualifications, the meaning of “persecution,” in abstentia removal orders, cancellation of removal eligibility, so-called “speculative” relief despite approved status petitions, etc. All of these cases may be found on the Department of Justice’s website.
Most recently, this month, the BIA has ruled, among other things, that merely mailing a Notice to Appear (NTA) to the most recent address on record, even if inaccurate, constitutes sufficient notice to preempt any procedural concerns (Matter of D-I-J-I-); and that Immigration Judges no longer even require motions from government prosecutors to pretermit (terminate without a merits hearing) asylum applications (Matter of G-R-B-).
(Even the forced removal of Nicholas Maduro from the Venezuelan Presidency, despite this not translating to a substantive change in the Venezuelan government or its ideology, was enough for the BIA in Matter of A-E-V-M- to mandate consideration of it when assessing Venezuelan asylum claims. In their eyes it seems, the Venezuelan government cannot hurt would-be asylees because it was Maduro’s government.)
It is abundantly clear that these developments in immigration jurisprudence erode public confidence in the impartiality of our justice system and illustrate clear shortfalls in our country’s desire to live up to its ideals as a protector of liberty, justice, impartiality, and freedom. Major reorganization is needed to protect those noncitizens—those human beings, often supporting a family—whose lives hang in the balance.
The Real Courts, Rule of Law Act of 2026 appears to promise the reform that is needed.
The Act seeks to reorganize the Immigration Adjudication apparatus as an administrative entity acting more independent from the influence of the executive branch, with judges and high-ranking administrators appointed by the president with the advice and consent of the Senate. The judges would also serve specified terms and not be as susceptible to seemingly arbitrary termination or influence as current immigration judges are.
The text of the law can be seen here.
If you are a U.S. Citizen, please consider calling your congressman and briefly voicing your support of the Real Courts, Rule of Law Act of 2026. You can find your members of congress here.
If you or someone you know are a U.S. immigrant, or you wish to become a U.S. immigrant in accordance with U.S. law, please do not go it alone. Contact a U.S. immigration attorney and approach your immigration matters with clear plans and confidence.
Thank you for reading. We at Eclipse Partners hope that you are all well and safe in these peculiar times.
[1] Lok Darjee, “’Everyone has a breaking point’: the immigration judges at the sharp end of Trump’s deportation drive. The Guardian. May 9, 2026. https://www.theguardian.com/us-news/2026/may/09/trump-administration-immigration-judges