Trump purges immigration judges: Public comment sparse so far

Only six people have commented on the Federal Register to date about Trump slashing all of Biden's picks from the Board of Immigration Appeals. Here's how to weigh in.

Activists rally outside Trump Tower in Midtown Manhattan, July 25, 2018 in New York City. (Photo by Drew Angerer/Getty Images)

Editor’s Note:
You care about American rights that are being determined now, and will shape our freedoms for a generation. Support clear-eyed journalism that understands the stakes – and gives you options for what you can do to act!

UPDATE 5/6/25: Our article showed how only six people left comments in the Federal Register about Trump’s immigration judge purge in three weeks. One day after publication, there were 121 comments received. Support journalism that makes an impact!

Like so many of his actions, Donald Trump’s mass firing of immigration judges wasn’t subtle in its political motivations. Trump fired every single one appointed by his predecessor Joe Biden, and for the most part, the public has been letting him get away with it.

Only six people left comments by press time about the drastic downsize of the Board of Immigration Appeals on the Federal Register, which has invited the public to respond over the last three weeks.

Possible Action Item: Notice and Comment

When proposing a rule change on the Federal Register, a government agency must give the public notice and an opportunity to comment. You can leave one here.

There’s been some backlash: More than a dozen Biden-appointed judges sued for their jobs back with backpay in a legal action before the Merit Systems Protection Board, an independent, quasi-judicial agency within the Executive Branch. (Trump removed the chair of that Board too, in a move that inspired yet another lawsuit.)

The Trump administration made this move through a so-called “interim final rule,” bypassing the need to wait for public comment before making a policy change, but it’s not too late for concerned members of the public to resist the politicization of U.S. immigration agencies. There’s a little more than a week left to weigh in.

“A Matter of Life and Freedom”

For one asylum-seeker who left a formal comment, the stakes couldn’t be higher.

“I am currently waiting for a decision from the [Board of Immigration Appeals] on my asylum case, which was appealed after a favorable decision in immigration court,” wrote the commenter, who filed anonymously. “For people like me, this process is not just paperwork — it’s a matter of life and freedom.”

The commenter noted that cutting the number of judges of the Board will increase the backlog of appeals “in a system that is already overwhelmed.”

“I am working, studying, and contributing to my community in the U.S. like many others in the same situation,” the comment states. “I respectfully ask the Department of Justice to reconsider this rule and ensure that the BIA remains capable of timely and fair review of immigration cases.”

Political scientist Norman Ornstein, one of the foremost experts on how government works, explained the purpose of the comment system in a phone interview.

“The impetus behind the notice and comment is to make sure that you don't impose regulations recklessly or for nefarious purposes — that you have opportunities for all affected parties and time to be able to react to them and give evidence about what the impact will be,” Ornstein told All Rise News.

Ornstein noted that those comments could enhance the litigation position of parties challenging a regulation or action.

In fact, the Supreme Court controversially issued a ruling last year in Loper Bright Enterprises v. Raimondo overturning the so-called Chevron deference, which limited a lower court’s ability to question an agency action. The Loper Bright precedent could make it easier for federal judges to overrule arbitrary and capricious agency actions, at least until the Supreme Court rules otherwise.

“It's going to be very interesting to see how hypocritical the justices are,” Ornstein said.

A Once-Bipartisan Consensus

Politicians from both major parties, including Trump, used to agree that we need more immigration judges, not fewer.

“The Board of Immigration Appeals has had a growing case backlog for multiple years now, as the number of cases running through the immigration courts grew dramatically, and [in Trump’s first term,] Congress funded more immigration judges’ positions,” Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, told All Rise News in a phone interview.

During his first term, Trump increased the Board’s size from 17 to 23 judges. Biden followed suit by expanding the size to 28 judges. There was an obvious need for that trend.

“If you look at statistics from the Board of Immigration Appeals that are published by the U.S. government, you will see that pending cases have grown consistently over the last four years,” Reichlin-Melnick noted.

That backlog reached 3.6 million cases by the end of the last fiscal year.

Congress Can Act

This may be the most dramatic example of the politicization of the immigration judge system, but it isn’t the first.

“Infamously, during the [George W.] Bush years, John Ashcroft purged the BIA of Clinton appointees,” Reichlin-Melnick said, adding that this precedent was far less dramatic.

Ashcroft let those Clinton appointees stay on as low-level immigration judges.

Despite the title, immigration judges belong to the Executive Branch, not the judiciary, but there have been efforts to rein in any president’s ability to interfere with the adjudication of immigration cases.

“We have seen administrations interfere with the immigration court — and specifically with the Board of Immigration Appeals — in the past, and this is one of the reasons why members of Congress and advocates have long pushed to insulate the immigration courts from political interference,” Reichlin-Melnick said.

During the Biden era, Republicans complained that certain Trump-appointed immigration judges lost their jobs, but an independent watchdog did not find evidence that these firings had any political motivations. Congress could craft legislation to remove even the perception of meddling in the process.

But there could be an obstacle to such an approach.

“The viability of that legislation may be called into question, given the various attacks that the Supreme Court has made on the idea of judicial review of for-causes removal protections,” Reichlin-Melnick said.

The deadline for all public comments to be received is Thursday, May 15.

For insights or inspiration, you can read other people’s public comments here.