Why Immigration Courts Answer to the Attorney General

On June 11, 2018, Attorney General Jeff Sessions issued a ruling in a case most Americans had never heard of, about a Salvadoran woman identified only by her initials. She had testified that her husband abused her physically, emotionally and sexually for years, that the authorities gave her no protection, and that she had finally fled. An immigration judge had denied her asylum; the Board of Immigration Appeals had reversed and sent the case back. Sessions then did something that would surprise anyone who assumes judges answer only to the law. He pulled the case to his own desk, decided it himself, and overruled a four-year-old precedent that had opened the door to asylum claims based on domestic violence. With one opinion, titled Matter of A-B-, the country's chief law enforcement officer changed the rules for every immigration judge in America. No legislature voted. No appellate court ruled. The power to do that had been sitting in the regulations the whole time.

In short: Immigration courts are not part of the judicial branch. They sit inside the Justice Department, and the Attorney General can take any case from the appeals board and issue a binding precedent, which lets each administration reshape asylum law on its own. Reformers across the political spectrum have proposed moving the courts out of the department, and the case for doing so has only grown.

A court that is really an office

The phrase "immigration court" misleads almost everyone who hears it. The several hundred immigration judges in the United States are not federal judges appointed for life under Article III of the Constitution. They are civil servants, employees of an office inside the Department of Justice called the Executive Office for Immigration Review, created in 1983 to separate the judging function from the old Immigration and Naturalization Service, which also did the prosecuting.

When Congress broke up the INS in the Homeland Security Act of 2002, it moved enforcement into the new Department of Homeland Security. It left the immigration courts where they were, under the Attorney General. So the government lawyer who argues for deportation now works for one cabinet secretary, and the judge who decides the case works for another. That is better than the arrangement before 1983. It is still a long way from independence.

Above the trial-level judges sits the Board of Immigration Appeals, also staffed by Justice Department employees. Its published decisions bind immigration judges nationwide. And above the board sits the Attorney General, who under a federal regulation can direct the board to refer any case to him or her for decision. The Attorney General's ruling becomes binding precedent on the board and every immigration judge. This is called the certification power, and it has been used by attorneys general of both parties for decades. What changed in recent years is how often, and how boldly.

What Matter of A-B- actually did

The precedent Sessions overruled was Matter of A-R-C-G-, a 2014 decision in which the board had recognized "married women in Guatemala who are unable to leave their relationship" as a particular social group, one of the five grounds on which asylum can be granted. It did not guarantee anyone asylum. It said such a claim could succeed if the facts were proven.

Sessions wrote that the board had erred, and he went further, saying that claims about domestic violence or gang violence carried out by private actors would generally not qualify for asylum. He also emphasized that applicants must show their government was unwilling or unable to protect them, describing that standard in demanding terms.

The effect on the ground was immediate. Immigration judges are bound by the Attorney General's precedents. Asylum officers conducting border screenings applied the new guidance. Lawyers representing women who had fled violent partners in Central America found that cases they would have won months earlier were now uphill.

Then the pendulum swung. In June 2021, Attorney General Merrick Garland vacated Matter of A-B- and the follow-on decisions that had built on it, restoring the earlier state of the law while the administration worked on regulations. Nothing in the statute had changed in those three years. Only the person at the top of the department had.

A rulebook that changes with each election

A-B- was not an isolated case. In the same period, attorneys general used certification to limit immigration judges' ability to administratively close cases, a docket-management tool judges had long used to set aside cases that were waiting on other applications. Another decision addressed whether a family could count as a particular social group. Later attorneys general reversed several of those rulings. Some have since been reinstated or revisited again.

Picture what this means for a person with a pending case. A woman who files for asylum in one administration can see the legal standard for her claim tighten, loosen and tighten again before her hearing date arrives, since cases in a backlog measured in millions can take years. Her lawyer has to brief the law as it stands on the day of the hearing, knowing it may change before an appeal is decided.

There is another layer. Until 2024, federal appeals courts reviewing the board's interpretations of the immigration statute generally deferred to them under the Chevron doctrine, so long as the reading was reasonable. In Loper Bright Enterprises v. Raimondo, decided in June 2024, the Supreme Court overruled Chevron and told courts to use their own best reading of statutes. That shift may limit how much an Attorney General's interpretation can bind the federal courts. It does nothing to limit how much it binds immigration judges, who still must follow the Attorney General, and most people in immigration court never get to a federal appeals court at all.

The case for leaving it alone

The fair version of the defence goes like this. Immigration is a core executive function tied to foreign policy and national security. Voters elect a president to set enforcement priorities, and the Attorney General's certification power is a tool of democratic accountability: if the public dislikes the direction of asylum law, it can vote out the administration that set it. Uniformity matters too. Without a final word at the top, hundreds of judges could drift into wildly inconsistent rulings.

Those points are not trivial. Asylum grant rates already vary dramatically from one immigration judge to another, and some variation reflects judges applying the law differently rather than cases differing on the facts. A structure that lets one official settle a question for everyone has real value.

But notice what that argument concedes: it treats immigration adjudication as policy, not as judging. A person facing deportation, sometimes to a country where she credibly fears death, is entitled to a decision based on law and evidence, from someone who is not taking direction from a cabinet officer whose job includes winning deportation cases. Accountability for enforcement priorities belongs with the people who enforce. Adjudication is supposed to be insulated from exactly that pressure. The tax court, the bankruptcy courts and the courts that hear veterans' appeals all show that Congress can build specialized courts outside the executive branch that still produce uniform law.

Judges who can be told what to do

The structure affects judges as well as litigants. Immigration judges have faced performance metrics tied to how many cases they complete, a policy that their professional association warned would pressure them to rule quickly rather than carefully. Their union, the National Association of Immigration Judges, has itself been a target: the administration in Trump's first term sought to strip it of its bargaining rights by arguing that judges are management.

In 2025, the Justice Department dismissed immigration judges in numbers that drew wide attention, at a moment when the backlog was already enormous. Whatever the reasons offered, the episode illustrated the vulnerability at the centre of the system. A judge who can be removed by the department whose policies she is applying is not, in any meaningful sense, independent of it.

This is not a partisan complaint. Former immigration judges appointed under both Republican and Democratic administrations have joined calls for structural change. So have the American Bar Association and the Federal Bar Association.

Building a real court

The leading reform proposal would make immigration courts an independent Article I court, the same constitutional category as the U.S. Tax Court and the Court of Appeals for Veterans Claims. Congress would create the court by statute. Judges would serve fixed terms and could be removed only for cause. The Attorney General's certification power would end, and precedent would be set by an appellate body inside the court, subject to review in the federal courts of appeals.

Bills along these lines have been introduced in Congress. None has passed. The reasons are familiar: immigration bills tend to become magnets for every other immigration fight, and an administration that likes its current power to steer the courts has little reason to support giving it up. A reform that would bind the next president of the other party is always easier to support than one that binds your own.

That is precisely why this is a good moment to think about it. Democrats will control both chambers of Congress beginning January 3, 2027, while the presidency remains in Republican hands. A reform that takes power away from whoever holds the Attorney General's office is the rare structural change that both parties should, on reflection, fear being without. Our democracy and rule of law topic page follows proposals like this one.

There are honest design questions. How would the transition work for judges already on the bench? How would a new court be funded and staffed, given that the backlog is the system's most pressing problem? A reform that changes the court's independence without changing its capacity would leave people waiting just as long. Any serious bill has to address both.

The woman in the case

It is easy to lose the person at the centre of Matter of A-B- in all of this. Her identity is protected, as it should be. What is public is her account: years of abuse, a police force that would not help, and a long journey to a country whose law, for a time, said that what happened to her might qualify for protection, then said it generally would not, then withdrew that statement. Her case went back to an immigration judge after all the precedents were issued. The point is not her particular outcome. It is that the rules governing her life were rewritten three times by officials she never appeared before.

A court system worthy of the name would not work that way. Fixing it would not guarantee any particular result in any particular case. It would guarantee that the result came from a judge applying the law, rather than from whoever won the last election.

How the Attorney General got the last word

The certification power did not appear out of nowhere. Immigration enforcement was moved from the Labor Department to the Justice Department in 1940, as war approached and immigration came to be seen as a security matter. The Board of Immigration Appeals was set up inside Justice that same year, and the arrangement that let the Attorney General review the board's decisions came with it. For decades the power was used sparingly, mostly to resolve technical disputes.

Its use as a policy instrument grew over time and across parties. Near the end of the George W. Bush administration, Attorney General Michael Mukasey issued a decision setting out a new method for deciding whether a crime involved "moral turpitude," a phrase that can make a noncitizen deportable. Several federal appeals courts rejected the approach, and Attorney General Eric Holder vacated it some years later. The episode previewed the pattern that later became familiar: one Attorney General announces a rule, courts and advocates fight it, and a successor of the other party throws it out.

What changed after 2017 was the volume and the reach. Attorneys general certified a run of cases touching asylum, administrative closure, continuances and bond, each one shifting the rules judges must apply. Their successors then reversed a number of them. The structure that made this possible was the same one that had existed since 1940. What was new was the willingness to use it as a steering wheel for an entire area of law.

What you can do

• Ask Congress where it stands on an independent court. Use our representatives lookup to find your House member and senators, with their phone numbers and latest votes. Ask whether they support moving immigration courts out of the Justice Department, and whether they will co-sponsor a bill to do it.
• Follow the precedents that change the law. Federal court rulings on asylum and agency power appear on our court watch page, which lists Supreme Court opinions with the Court's summaries and the emergency docket.
• Watch the immigration beat closely. Decisions by the Attorney General rarely make front pages. Our immigration and ICE topic page collects coverage of courts, enforcement and policy changes.
• Support counsel in your area. People in immigration court have no right to a government-appointed lawyer. Legal-aid groups that represent them are among the most effective ways to make the current system fairer while the structure stays as it is.

Courts earn trust by being out of reach of the people who appear before them and the people who govern. Immigration courts were never given that distance, and Congress is the only branch that can grant it.