On a Wednesday morning in January, an immigration judge in Annandale, Virginia was running a hearing with a dozen attorneys appearing remotely for detained clients. Her supervisor opened the courtroom door and asked whether she was on the record. She called a recess. In the hallway, she was told she was off the detained docket immediately. She asked why, and he said he didn’t know. She asked whether she could finish the hearing, and he said no. Her replacement was already waiting.
Karen Donoso Stevens had been an immigration judge for nearly a decade, and a Homeland Security prosecutor for a decade before that. She denied most of the asylum claims she heard and met her deadlines. Months earlier, on her account, a supervisor told her that unnamed higher-ups wanted four bond decisions she had already issued reversed, and that she was to vacate them herself, on her own motion, because the government would not be filing anything.
Gwen and Marc set that account aside from the question of who’s telling the truth and look at the structure it happened inside. Almost everything in this story runs on powers nobody disputes the executive branch has. Immigration judges are appointed by the attorney general, work in the Justice Department, and have none of the protections administrative law judges nominally hold. Their dockets can be reassigned. The Board of Immigration Appeals can reverse them. The attorney general can refer a case to himself and decide it. There is one thing that structure is not supposed to permit, and it is the thing alleged here.
In this episode:
- The regulation that calls immigration judges delegates of the attorney general and tells them to exercise independent judgment in the same breath
- Why that isn’t a contradiction, and where the difference lies between exercising authority through the system and reaching into a pending case
- Marcello v. Bonds, and the Court’s acceptance of adjudication inside the attorney general’s chain of authority
- Accardi v. Shaughnessy: the attorney general denies himself the right to sidestep the board while his own regulations remain in force
- Why Accardi reaches well past immigration, and what it doesn’t stop the attorney general from doing tomorrow
- Accardi’s epilogue, where the doctrine survived and the man was still deported
- The scale: roughly 700 judges, about as many as there are federal district judgeships, a backlog past four million cases, and no appointed counsel
- Why a credibility finding is often the entire asylum case
- Matter of Yajure Hurtado and what it changed about bond for people who entered without inspection
- The gap Donoso Stevens thought the board had left open, and whether disagreement about an undiscussed category is defiance
- Case completion quotas, performance reviews, and the cumulative pressure problem from last season, against something far more direct
- A termination letter citing Article II, nine months before pension eligibility, a month after the highest available performance rating
- The Article I immigration court proposal, the case against it, and why the votes aren’t there
- Smaller fixes, including the one that costs nobody any authority: put any direction about a pending case in writing, in the file
Source: This episode discusses reporting by the Washington Post: “How a respected U.S. immigration judge lost her job under Trump,” October 25, 2026. https://www.washingtonpost.com/nation/2026/10/25/how-respected-us-immigration-judge-lost-her-job-under-trump/
00:00:13 --> 00:00:15 Welcome to Administrative Remedies, because you
00:00:15 --> 00:00:17 can't fix what you don't understand. Brought
00:00:17 --> 00:00:19 to you in part by the University of Tulsa College
00:00:19 --> 00:00:22 of Law's Mabee Legal Information Center. I'm
00:00:22 --> 00:00:24 Gwendolyn Savitz, an associate professor here
00:00:24 --> 00:00:26 at TU. And I'm Marc Roark, a professor at the
00:00:26 --> 00:00:29 College of Law. We'll be breaking down complex
00:00:29 --> 00:00:31 doctrines with real-life analogies and examples
00:00:31 --> 00:00:33 to demystify the world of administrative law
00:00:33 --> 00:00:35 for everyone trying to understand how government
00:00:35 --> 00:00:38 actually works. Agencies are the main way the
00:00:38 --> 00:00:40 federal government gets things done. It's not
00:00:40 --> 00:00:42 through Congress, for reasons we'll be addressing
00:00:42 --> 00:00:45 over the course of the series. Marc, we were
00:00:45 --> 00:00:48 supposed to finish the introductory topics today,
00:00:48 --> 00:00:50 all the stuff before you get through the courthouse
00:00:50 --> 00:00:53 door. However, we're going to pause that for
00:00:53 --> 00:00:55 a week. It sounds like something has happened.
00:00:55 --> 00:00:58 An article came out in the Washington Post on
00:00:58 --> 00:01:00 Sunday, and it will be linked in the notes for
00:01:00 --> 00:01:03 the show, talking about the stuff we're going
00:01:03 --> 00:01:05 to be talking about here today. This is based
00:01:05 --> 00:01:08 on that article. It is really important that
00:01:08 --> 00:01:10 we can actually talk through this stuff and
00:01:10 --> 00:01:14 put context behind it. So what happened? On a
00:01:14 --> 00:01:17 Wednesday morning in January, there was an immigration
00:01:17 --> 00:01:19 judge in Annandale, Virginia. She called her
00:01:19 --> 00:01:21 courtroom to order. There were a dozen attorneys
00:01:21 --> 00:01:24 who were all appearing remotely. They're representing
00:01:24 --> 00:01:26 people being held in immigration detention. And
00:01:26 --> 00:01:28 then partway through the hearing, her supervisor
00:01:28 --> 00:01:30 opened the courtroom door and asked whether she
00:01:30 --> 00:01:33 was on the record. OK, that's a really weird
00:01:33 --> 00:01:35 question to ask in the middle of court. She thought
00:01:35 --> 00:01:38 so, too. So she called a recess and stepped into
00:01:38 --> 00:01:40 the hallway. And according to her account, her
00:01:40 --> 00:01:42 supervisor told her that she was being removed
00:01:42 --> 00:01:44 from the detained docket, the one that she was
00:01:44 --> 00:01:47 on, immediately. So she asked why. He said he
00:01:47 --> 00:01:49 didn't know. She asked whether she could go back
00:01:49 --> 00:01:51 and finish the hearing she was doing. He said
00:01:51 --> 00:01:54 no. So she was immediately pulled off the case
00:01:54 --> 00:01:57 while the hearing was actually happening. Yes.
00:01:57 --> 00:01:59 So she went back in and told the lawyers she
00:01:59 --> 00:02:01 was informed she would no longer be allowed to
00:02:01 --> 00:02:02 finish their hearing and left the courtroom.
00:02:03 --> 00:02:05 And at that point, her replacement was already
00:02:05 --> 00:02:07 waiting in the hallway. OK, somebody had already
00:02:07 --> 00:02:11 decided this course of events was going to happen.
00:02:11 --> 00:02:15 Yes, exactly. So her name was Karen Donoso Stevens.
00:02:15 --> 00:02:18 She had been an immigration judge for nearly
00:02:18 --> 00:02:20 a decade. And before that, she spent another
00:02:20 --> 00:02:23 decade as a Homeland Security prosecutor. She'd
00:02:23 --> 00:02:27 been appointed in 2016 by Attorney General Loretta
00:02:27 --> 00:02:30 Lynch after a lengthy selection process. And
00:02:30 --> 00:02:32 she was Annandale's most experienced judge handling
00:02:32 --> 00:02:35 detained cases. And she wasn't some sort of crazy
00:02:35 --> 00:02:37 outlier. She denied most of the asylum claims
00:02:37 --> 00:02:39 she heard. She met her deadlines. And according
00:02:39 --> 00:02:42 to the Washington Post reporting, she was generally
00:02:42 --> 00:02:44 viewed as someone who followed the law, whether
00:02:44 --> 00:02:46 the result favored the government or the immigrant.
00:02:46 --> 00:02:49 Who had the legal authority to do this? Her employer
00:02:49 --> 00:02:51 did. We've talked about judges who aren't part
00:02:51 --> 00:02:53 of the regular federal judiciary. Immigration
00:02:53 --> 00:02:57 judges are definitely in that category, but they're less
00:02:57 --> 00:03:00 protected than ALJs. They work for the Department
00:03:00 --> 00:03:02 of Justice and the Executive Office for Immigration
00:03:02 --> 00:03:05 Review. And the lawyers seeking removal on the other
00:03:05 --> 00:03:09 side, the people trying to go after the immigrants,
00:03:09 --> 00:03:11 work for the Department of Homeland Security.
00:03:11 --> 00:03:13 So they're in different departments, but the
00:03:13 --> 00:03:17 same executive branch. And this entire adjudicative
00:03:17 --> 00:03:20 structure above that immigration judge, her supervisors,
00:03:20 --> 00:03:22 the Board of Immigration Appeals, ultimately
00:03:22 --> 00:03:24 the Attorney General, that's all still inside
00:03:24 --> 00:03:27 the executive branch. So it looks like a court.
00:03:27 --> 00:03:30 It functions like a court in a lot of ways. But
00:03:30 --> 00:03:34 the judge is also not independent and is an executive
00:03:34 --> 00:03:37 branch employee. Yes, this matters because months
00:03:37 --> 00:03:38 before she'd been pulled from the courtroom,
00:03:39 --> 00:03:41 she said that one of her supervisors told her
00:03:41 --> 00:03:45 that unnamed higher-ups wanted four bond decisions
00:03:45 --> 00:03:48 that she'd already issued reversed. And this
00:03:48 --> 00:03:50 wasn't a Board of Immigration Appeals reversing
00:03:50 --> 00:03:52 her. That would have been totally normal, ordinary
00:03:52 --> 00:03:55 appellate review. No one had appealed and obtained
00:03:55 --> 00:03:57 a ruling saying that she was wrong. What she
00:03:57 --> 00:03:59 said is that the instruction came back to her.
00:03:59 --> 00:04:01 She was supposed to reopen the cases and reverse
00:04:01 --> 00:04:05 her own decisions on her own initiative. So instead
00:04:05 --> 00:04:07 of the government challenging the rulings through
00:04:07 --> 00:04:09 the adjudicative process, someone above the judge
00:04:09 --> 00:04:11 was allegedly telling the original decision maker
00:04:11 --> 00:04:14 to change them herself. Yes, that's the distinction.
00:04:15 --> 00:04:17 So a supervisor managing her docket is one thing.
00:04:17 --> 00:04:19 The Board reversing her on appeal. That's
00:04:19 --> 00:04:21 what appellate review is for. Those are both
00:04:21 --> 00:04:24 fine. But telling a judge who decided the case
00:04:24 --> 00:04:26 to undo her own ruling because the people above
00:04:26 --> 00:04:29 her want a different result is something else.
00:04:29 --> 00:04:31 And on her account, when she said the government
00:04:31 --> 00:04:33 should just appeal, she was told it wouldn't.
00:04:33 --> 00:04:36 OK, before we go further, how much of her account
00:04:36 --> 00:04:39 do we actually know? She was keeping contemporaneous
00:04:39 --> 00:04:42 notes during this process as all of this stuff
00:04:42 --> 00:04:44 was happening. And there were other people who
00:04:44 --> 00:04:46 were present for parts of it, and they've corroborated
00:04:46 --> 00:04:49 the stuff they were there for to the Post. The
00:04:49 --> 00:04:51 official she named didn't respond to the paper's
00:04:51 --> 00:04:53 questions about her specific allegations. And
00:04:53 --> 00:04:56 the Justice Department said that it adjudicates
00:04:56 --> 00:04:58 cases impartially, does not view adjudication
00:04:58 --> 00:05:00 in terms of desired outcomes, and has no stake
00:05:00 --> 00:05:03 in any particular result. OK, so we have a detailed
00:05:03 --> 00:05:06 account with some corroboration and a general
00:05:06 --> 00:05:09 denial from the agency, but not a factual finding
00:05:09 --> 00:05:11 that everything she says happened exactly the
00:05:11 --> 00:05:13 way she said it. Right. This episode isn't so
00:05:13 --> 00:05:15 much about deciding whether she's telling the
00:05:15 --> 00:05:18 truth. It's about the system she's working inside,
00:05:18 --> 00:05:20 because almost everything we're going to talk
00:05:20 --> 00:05:23 about today turns on powers that nobody questions
00:05:23 --> 00:05:25 the executive branch has. But the interesting
00:05:25 --> 00:05:27 part is that there is that one line it's not
00:05:27 --> 00:05:34 supposed to cross. Decide a case. Exactly. OK,
00:05:35 --> 00:05:38 let's start with where they come from. If Congress
00:05:38 --> 00:05:41 didn't create these judgeships, who exactly did?
00:05:42 --> 00:05:45 Congress did up to a point. The Act defines an
00:05:45 --> 00:05:47 immigration judge as an attorney the Attorney
00:05:47 --> 00:05:50 General appoints and assigns to removal proceedings.
00:05:50 --> 00:05:52 What Congress didn't do is create a court. There are
00:05:52 --> 00:05:55 no judicial officers. There are no fixed terms.
00:05:55 --> 00:05:57 This isn't even anything like the Tax Court,
00:05:58 --> 00:06:00 which itself is already kind of a little mini,
00:06:00 --> 00:06:03 not totally normal court. It left them inside
00:06:03 --> 00:06:05 the Attorney General's administrative structure.
00:06:05 --> 00:06:07 And the details come from a regulation that says
00:06:07 --> 00:06:10 two things in the same breath. Here, this is
00:06:10 --> 00:06:13 8 C.F.R. section 1003.10.
00:06:13 --> 00:06:16 OK. Immigration judges are attorneys whom the
00:06:16 --> 00:06:18 Attorney General appoints as administrative judges.
00:06:18 --> 00:06:21 Immigration judges shall act as the Attorney
00:06:21 --> 00:06:22 General's delegates in cases that come before
00:06:22 --> 00:06:25 them. And immigration judges shall exercise their
00:06:25 --> 00:06:28 independent judgment and discretion. So it describes
00:06:28 --> 00:06:30 them as delegates of the Attorney General exercising
00:06:30 --> 00:06:34 independent judgment. Those two phrases seem
00:06:34 --> 00:06:36 like they are in tension. The judge is exercising
00:06:36 --> 00:06:38 authority that belongs to the Attorney General.
00:06:38 --> 00:06:40 Congress gave the Attorney General the power
00:06:40 --> 00:06:43 to decide these cases. And the Attorney General,
00:06:43 --> 00:06:45 in turn, has delegated it down to the judges.
00:06:45 --> 00:06:48 And within that delegation, the judge is supposed
00:06:48 --> 00:06:51 to decide everything for herself. So she is exercising
00:06:51 --> 00:06:54 the Attorney General's authority. But the regulation
00:06:54 --> 00:06:56 also says the Attorney General's delegate has
00:06:56 --> 00:07:00 to exercise independent judgment. So, I mean,
00:07:00 --> 00:07:03 if I'm being critical, that works only if delegate
00:07:03 --> 00:07:06 means you have this authority to decide, not
00:07:06 --> 00:07:08 you have to decide the way I want you to decide.
00:07:09 --> 00:07:11 Right. Which is how it has always been understood.
00:07:11 --> 00:07:13 And the Attorney General still has authority
00:07:13 --> 00:07:16 over the system. The Attorney General appoints
00:07:16 --> 00:07:18 the immigration judges. After the Board of Immigration
00:07:18 --> 00:07:20 Appeals decides a case, the Attorney General
00:07:20 --> 00:07:22 can refer the decision to himself and issue the
00:07:22 --> 00:07:25 final administrative ruling. But that's different
00:07:25 --> 00:07:27 from telling the immigration judge how to decide
00:07:27 --> 00:07:30 the case in the first place. One is formal review
00:07:30 --> 00:07:32 at the top of the adjudicative process. The other
00:07:32 --> 00:07:34 is interference with the decision maker before
00:07:34 --> 00:07:37 that process has run. The structure gives the
00:07:37 --> 00:07:39 Attorney General enormous control over the law
00:07:39 --> 00:07:42 and even the final outcome, but it still preserves
00:07:42 --> 00:07:44 a separate space where the immigration judge
00:07:44 --> 00:07:46 is supposed to make the initial decision independently.
00:07:47 --> 00:07:49 Yes, and the appellate body has the same design.
00:07:49 --> 00:07:51 The Board of Immigration Appeals sits inside
00:07:51 --> 00:07:54 the Justice Department, too. Its members are
00:07:54 --> 00:07:57 also appointed by the Attorney General. And it's
00:07:57 --> 00:08:00 described in a parallel regulation as his delegates
00:08:00 --> 00:08:03 who exercise independent judgment. Same structure,
00:08:03 --> 00:08:05 one level up. So until a federal court of appeals,
00:08:06 --> 00:08:08 every decider in the chain works for the Attorney
00:08:08 --> 00:08:11 General. Yes, within the agency. After that,
00:08:11 --> 00:08:13 you go to the federal court of appeals, which
00:08:13 --> 00:08:15 is where the real judicial review starts to happen.
00:08:15 --> 00:08:18 OK, give me the scale of this. How much adjudication
00:08:18 --> 00:08:21 are we talking about? There's about 700 judges,
00:08:21 --> 00:08:23 or there were before we started seeing firings.
00:08:23 --> 00:08:27 This was across about 60 courts, and there was
00:08:27 --> 00:08:31 a backlog that had passed 4 million cases. That's
00:08:31 --> 00:08:32 about as many adjudicators as there are federal
00:08:32 --> 00:08:35 district judgeships in the entire country. So
00:08:35 --> 00:08:37 this is a court system the size of the federal
00:08:37 --> 00:08:40 trial bench deciding whether people get deported.
00:08:40 --> 00:08:43 And no right to appointed counsel. Right.
00:08:43 --> 00:08:45 This is a civil proceeding. If you can't afford
00:08:45 --> 00:08:48 a lawyer, you appear without a lawyer. This means
00:08:48 --> 00:08:50 children appear without a lawyer. On the other
00:08:50 --> 00:08:52 side of the room is a Homeland Security attorney
00:08:52 --> 00:08:55 who does this full time. So what is the judge
00:08:55 --> 00:08:59 actually deciding then? It's usually whether
00:08:59 --> 00:09:01 someone who is removable qualifies for something
00:09:01 --> 00:09:04 that lets them stay. So the biggest one is asylum.
00:09:04 --> 00:09:06 This is whether somebody has past persecution
00:09:06 --> 00:09:09 or a well-founded fear of it on a protected
00:09:09 --> 00:09:12 ground, and the applicant needs to make their
00:09:12 --> 00:09:15 case. Your own testimony can be sufficient if
00:09:15 --> 00:09:18 the judge believes you. Okay, so the credibility
00:09:18 --> 00:09:22 finding is the whole case. It certainly can be,
00:09:22 --> 00:09:24 which is why who sits in the room isn't some
00:09:24 --> 00:09:27 sort of procedural detail. Okay, we spent a season
00:09:27 --> 00:09:29 on adjudicators. These aren't administrative
00:09:29 --> 00:09:31 law judges in the sense that we use that term.
00:09:32 --> 00:09:35 Yes, and this bears repeating. An administrative
00:09:35 --> 00:09:38 law judge under the APA theoretically is supposed
00:09:38 --> 00:09:40 to have statutory protections against removal.
00:09:40 --> 00:09:42 There's good cause established before the Merit
00:09:42 --> 00:09:45 Systems Protection Board and they're supposed
00:09:45 --> 00:09:49 to not be evaluated on how cases come out. I
00:09:49 --> 00:09:50 think these are incredibly shaky protections.
00:09:51 --> 00:09:53 I've written about that. But immigration judges
00:09:53 --> 00:09:56 don't even have these theoretical protections.
00:09:57 --> 00:09:59 Has the Supreme Court ever dealt with that structure
00:09:59 --> 00:10:03 directly? It did in 1955 in Marcello v. Bonds.
00:10:03 --> 00:10:05 The argument was that deportation hearings had
00:10:05 --> 00:10:08 to follow the APA's hearing structure. And part
00:10:08 --> 00:10:10 of that would require separation between the
00:10:10 --> 00:10:12 people involved in enforcement and the people
00:10:12 --> 00:10:14 doing the adjudicating. And the Supreme Court
00:10:14 --> 00:10:16 said no. Congress had created a separate system
00:10:16 --> 00:10:18 for immigration proceedings, and that system
00:10:18 --> 00:10:21 displaced any relevant APA protections. So the
00:10:21 --> 00:10:23 Court accepted the basic structure that we still
00:10:23 --> 00:10:26 have, adjudication inside the Attorney General's
00:10:26 --> 00:10:28 chain of authority. Yes, it did, but there was
00:10:28 --> 00:10:31 also an important qualification. The Court pointed
00:10:31 --> 00:10:33 out that under the regulations, the Attorney
00:10:33 --> 00:10:35 General could not simply dictate what the Board
00:10:35 --> 00:10:37 had to decide. And that basic distinction still
00:10:37 --> 00:10:40 holds today. The Attorney General retains formal
00:10:40 --> 00:10:42 review authority, but the adjudicators assigned
00:10:42 --> 00:10:44 the case are still supposed to be exercising
00:10:44 --> 00:10:46 their own independent judgment unless and until
00:10:46 --> 00:10:49 that review process is used. Not because the
00:10:49 --> 00:10:51 Attorney General lacked ultimate authority over
00:10:51 --> 00:10:54 immigration adjudication, though. Right. We just
00:10:54 --> 00:10:56 talked about how the Attorney General can exercise
00:10:56 --> 00:10:58 that authority directly through the procedures
00:10:58 --> 00:11:01 that the system has. The point is, though, that
00:11:01 --> 00:11:03 if a regulation gives the decision to the Board
00:11:03 --> 00:11:06 or to an immigration judge and tells that adjudicator
00:11:06 --> 00:11:09 to exercise independent judgment, the Attorney
00:11:09 --> 00:11:11 General can't leave that delegation in place
00:11:11 --> 00:11:14 and simultaneously dictate the answer. Again,
00:11:14 --> 00:11:16 it's the difference between exercising authority
00:11:16 --> 00:11:19 through the system and reaching into somebody
00:11:19 --> 00:11:22 else's decision. OK, if the Attorney General
00:11:22 --> 00:11:24 still has ultimate authority over the system,
00:11:24 --> 00:11:26 though, what actually prevents that authority
00:11:26 --> 00:11:28 from turning into instructions about how a particular
00:11:28 --> 00:11:31 judge should decide a particular case? There's
00:11:31 --> 00:11:33 a couple of things. One is the regulation we
00:11:33 --> 00:11:36 just read. And the second is a case from 1954,
00:11:37 --> 00:11:40 Accardi v. Shaughnessy. A man was facing deportation
00:11:40 --> 00:11:43 and he applied for discretionary relief from
00:11:43 --> 00:11:46 the Board of Immigration Appeals. He alleged
00:11:46 --> 00:11:48 that the Attorney General had circulated a confidential
00:11:48 --> 00:11:50 list of people he wanted deported and that the
00:11:50 --> 00:11:52 man's name was on it before the Board ever considered
00:11:52 --> 00:11:55 his case. So the decision maker had been handed
00:11:55 --> 00:11:58 the answer in advance. Yes, that's what he was
00:11:58 --> 00:12:01 arguing. And the Supreme Court said that he was
00:12:01 --> 00:12:03 entitled to a hearing on it, not because the
00:12:03 --> 00:12:05 Attorney General lacked the power to decide the
00:12:05 --> 00:12:07 case himself, but because he'd written regulations
00:12:07 --> 00:12:09 that gave the Board the discretion to decide
00:12:09 --> 00:12:12 it. Here is what it said in the case. As long
00:12:12 --> 00:12:14 as the regulations remain operative, the Attorney
00:12:14 --> 00:12:17 General denies himself the right to sidestep
00:12:17 --> 00:12:19 the Board or dictate its decision in any manner.
00:12:20 --> 00:12:23 So the constraint isn't on his power. It's on
00:12:23 --> 00:12:27 his power to have it both ways. Yes. And this
00:12:27 --> 00:12:29 sentence had a long afterlife. Courts cited Accardi
00:12:29 --> 00:12:31 for the general rule that when an agency gives
00:12:31 --> 00:12:34 itself binding procedures, especially procedures
00:12:34 --> 00:12:36 that protect the people dealing with the agency,
00:12:36 --> 00:12:38 it has to follow those procedures while they're
00:12:38 --> 00:12:40 in force. The doctrine has shown up in military
00:12:40 --> 00:12:43 discharge cases, in benefits cases, in employment
00:12:43 --> 00:12:45 cases. It goes way beyond immigration. Though
00:12:45 --> 00:12:48 notice what it doesn't do. It doesn't stop the
00:12:48 --> 00:12:50 Attorney General from rewriting the regulation
00:12:50 --> 00:12:53 tomorrow and deciding every case himself. Right.
00:12:53 --> 00:12:56 Nothing is stopping that but Congress. Accardi
00:12:56 --> 00:12:58 polices the gap between what the rules say and
00:12:58 --> 00:13:00 what the agency does. It doesn't say anything
00:13:00 --> 00:13:02 about what the rules themselves have to say.
00:13:03 --> 00:13:05 The agency has to follow its own regulations.
00:13:06 --> 00:13:09 Yes, but he won the right to prove his allegation.
00:13:09 --> 00:13:11 But when he went back to the district court,
00:13:11 --> 00:13:13 he had his hearing and he lost. The Attorney
00:13:13 --> 00:13:15 General testified that there was no list, that
00:13:15 --> 00:13:17 his investigation had shown Accardi was a racketeer
00:13:17 --> 00:13:19 and that he'd never discussed the case with any
00:13:19 --> 00:13:22 Board member. The court found the Board had decided
00:13:22 --> 00:13:25 free of any dictation. And in 1955, the Supreme
00:13:25 --> 00:13:28 Court affirmed. So the doctrine is real and the
00:13:28 --> 00:13:31 man is still deported. Yes. And at the time,
00:13:31 --> 00:13:34 Justice Black dissented, and he said that the
00:13:34 --> 00:13:36 prejudgment had been proved beyond any question.
00:13:36 --> 00:13:39 But regardless, the guy got his hearing and the
00:13:39 --> 00:13:42 hearing went against him. And yet the rule has
00:13:42 --> 00:13:45 survived him. Yes. It's the reason that independent
00:13:45 --> 00:13:47 judgment language in that regulation isn't just
00:13:47 --> 00:13:49 decorative. The Attorney General can change the
00:13:49 --> 00:13:52 regulation. What he can't do is leave it in place
00:13:52 --> 00:13:54 and work around it. Which puts a lot of weight
00:13:54 --> 00:13:57 on whether anyone can find out that it happened.
00:13:57 --> 00:14:00 Yes. And that's a practical problem. Last summer,
00:14:00 --> 00:14:02 the official leading the agency that runs the
00:14:02 --> 00:14:05 immigration courts issued a memo saying, as the
00:14:05 --> 00:14:07 Post reported it, that no one in that office
00:14:07 --> 00:14:10 may direct an adjudicator to rule in a particular
00:14:10 --> 00:14:13 way. On paper, that's Accardi restated as internal
00:14:13 --> 00:14:17 policy. And the allegation in Annandale is that
00:14:17 --> 00:14:20 the opposite occurred. Yes. So more specifically,
00:14:20 --> 00:14:22 what happened? Her account is that in September
00:14:22 --> 00:14:24 of 2025, the Board of Immigration Appeals had
00:14:24 --> 00:14:27 just issued a major decision, and it said that
00:14:27 --> 00:14:29 people who entered the country unlawfully generally
00:14:29 --> 00:14:31 could not get bond from an immigration judge
00:14:31 --> 00:14:34 while their case was pending. So she says she
00:14:34 --> 00:14:36 followed that rule, but she thought that it left
00:14:36 --> 00:14:39 one category unresolved, people who'd been brought
00:14:39 --> 00:14:41 to the United States as unaccompanied children
00:14:41 --> 00:14:44 and had since turned 18. So there were four people
00:14:44 --> 00:14:46 in that situation who came before her, and she
00:14:46 --> 00:14:48 concluded that they were still eligible for bond
00:14:48 --> 00:14:52 hearings, and she granted bond. Then her supervisor
00:14:52 --> 00:14:55 called, and he said that bonds were a hot topic
00:14:55 --> 00:14:57 and that those four cases had been elevated.
00:14:57 --> 00:14:59 He sent her a federal district court decision
00:14:59 --> 00:15:02 from New York that pointed the other way, a decision
00:15:02 --> 00:15:04 that did not bind her as an immigration judge
00:15:04 --> 00:15:07 in Virginia. She read the decision and told him
00:15:07 --> 00:15:10 she could see the argument, and then he called
00:15:10 --> 00:15:12 back. So according to her notes, he said that
00:15:12 --> 00:15:15 unnamed higher-ups required her to vacate the
00:15:15 --> 00:15:18 four decisions herself on her own motion without
00:15:18 --> 00:15:21 Homeland Security filing anything. So she asked
00:15:21 --> 00:15:23 the obvious question you should be thinking,
00:15:23 --> 00:15:25 too, which is why couldn't DHS file a motion
00:15:25 --> 00:15:29 asking her to reconsider or do an appeal? And
00:15:29 --> 00:15:30 she says she was told that they weren't going
00:15:30 --> 00:15:33 to do that. And what does the file show afterward?
00:15:34 --> 00:15:36 Nothing about a phone call, presumably. Yes.
00:15:36 --> 00:15:40 So what it says is that this was sua sponte,
00:15:40 --> 00:15:42 meaning on the court's own initiative. It would
00:15:42 --> 00:15:44 just look like a judge who'd made a decision
00:15:44 --> 00:15:47 and then spontaneously reconsidered it. And did
00:15:47 --> 00:15:50 she? She did. She vacated all four decisions.
00:15:51 --> 00:15:53 She says she considered refusing, but that she
00:15:53 --> 00:15:55 went along partly because she thought the New
00:15:55 --> 00:15:58 York decision had some force. She also says that
00:15:58 --> 00:16:00 she still debates whether that was right. OK,
00:16:00 --> 00:16:03 that reads less like pressure than like an order.
00:16:03 --> 00:16:06 A supervisor telling her that people above him
00:16:06 --> 00:16:08 required it and that the department wasn't going
00:16:08 --> 00:16:11 to file anything. Yes. On her account, that is
00:16:11 --> 00:16:13 absolutely what it sounds like. What she didn't
00:16:13 --> 00:16:16 say was an explicit consequence. Nobody said
00:16:16 --> 00:16:18 what would happen if she refused. But by then,
00:16:18 --> 00:16:21 she'd already watched colleagues get fired, so nobody
00:16:21 --> 00:16:24 had to say that part. And she had been told the
00:16:24 --> 00:16:26 one route that would have created the record
00:16:26 --> 00:16:28 wasn't available. Yes, which is the part that
00:16:28 --> 00:16:30 would have mattered in court if this had ever
00:16:30 --> 00:16:33 gotten to a court for review. We're talking about
00:16:33 --> 00:16:35 somebody outside the proceeding reaching into
00:16:35 --> 00:16:38 a pending case and telling the adjudicator what
00:16:38 --> 00:16:41 result to produce. And the test isn't whether
00:16:41 --> 00:16:44 anyone above her can say she got it wrong. Of
00:16:44 --> 00:16:47 course they can. It's whether they do it through
00:16:47 --> 00:16:50 the adjudicative hierarchy or around it. Right.
00:16:50 --> 00:16:52 That's that bright line that the regulation draws.
00:16:53 --> 00:16:55 It is the only one that can be drawn without
00:16:55 --> 00:16:57 pretending that these judges are something they
00:16:57 --> 00:16:59 aren't. OK, so there's another piece of this
00:16:59 --> 00:17:02 we've talked about before. Last season, when
00:17:02 --> 00:17:04 we were looking at agency adjudication, we spent
00:17:04 --> 00:17:07 an episode on all the different ways agencies
00:17:07 --> 00:17:09 can influence adjudication without ever telling
00:17:09 --> 00:17:12 a judge how to decide a particular case. Yeah.
00:17:12 --> 00:17:14 We talked about training, performance reviews,
00:17:15 --> 00:17:17 case completion targets, quality reviews. And
00:17:17 --> 00:17:20 you were really careful about it then, that those
00:17:20 --> 00:17:22 things aren't inherently improper and agencies
00:17:22 --> 00:17:25 do have to manage their adjudicators. And the
00:17:25 --> 00:17:28 problem we were looking at was the cumulative
00:17:28 --> 00:17:31 pressure they can create even when nobody ever
00:17:31 --> 00:17:34 says deny this claim or decide this case for
00:17:34 --> 00:17:36 the government. Yes. And immigration courts already
00:17:36 --> 00:17:39 had the same problem with much less insulation
00:17:39 --> 00:17:42 around the judge. Case completion quotas came
00:17:42 --> 00:17:43 into the immigration system during the first
00:17:43 --> 00:17:46 Trump administration. Judges had numerical completion
00:17:46 --> 00:17:49 requirements tied to performance reviews. And
00:17:49 --> 00:17:51 the current administration has again emphasized
00:17:51 --> 00:17:54 speed and reducing a backlog that had grown past
00:17:54 --> 00:17:57 4 million cases. And as we said last season,
00:17:57 --> 00:18:00 caring about the backlog isn't the problem. People
00:18:00 --> 00:18:02 waiting years for hearings is a real failure
00:18:02 --> 00:18:05 of the system. Yes. Here, if her account is accurate,
00:18:06 --> 00:18:07 you have something much more direct than that
00:18:07 --> 00:18:10 kind of ambient pressure. We have a direct
00:18:10 --> 00:18:13 command to change the decisions. OK. And was
00:18:13 --> 00:18:18 she removed? Yes, she was. In May. This was about
00:18:18 --> 00:18:20 nine months before she would have been eligible
00:18:20 --> 00:18:22 for her pension. A month earlier, her supervisor
00:18:22 --> 00:18:24 had signed a performance review, giving her the
00:18:24 --> 00:18:27 highest rating available and thanking her for
00:18:27 --> 00:18:29 clearing a backlog of motions. The termination
00:18:29 --> 00:18:31 letter gave no reason. Like most of them, it
00:18:31 --> 00:18:34 just cited Article II, meaning the president's
00:18:34 --> 00:18:36 inherent authority to remove whoever he feels
00:18:36 --> 00:18:38 like. Which is the Slaughter argument applied
00:18:38 --> 00:18:40 to the easiest possible case. If the president
00:18:40 --> 00:18:43 can remove an FTC commissioner over a statute
00:18:43 --> 00:18:46 that says otherwise, a Justice Department attorney
00:18:46 --> 00:18:48 serving at the Attorney General's pleasure isn't
00:18:48 --> 00:18:51 a close question. Right. That part's easy. These
00:18:51 --> 00:18:53 judges never had any sort of protection. They
00:18:53 --> 00:18:55 never had Humphrey's Executor. They never had
00:18:55 --> 00:18:59 anything helping them. But it still doesn't resolve
00:18:59 --> 00:19:01 the suit. She's appealing, and she's one of at
00:19:01 --> 00:19:04 least a dozen former immigration judges arguing
00:19:04 --> 00:19:06 that they were unlawfully dismissed, and those
00:19:06 --> 00:19:10 raise other claims. OK, so then let's leave the
00:19:10 --> 00:19:12 judges for a minute and let's look at what all
00:19:12 --> 00:19:15 this does to the cases themselves. OK, so let's
00:19:15 --> 00:19:17 start with bond. In September 2025, the Board
00:19:17 --> 00:19:20 of Immigration Appeals decided Matter of Yajure
00:19:20 --> 00:19:23 Hurtado. And remember, the Board sits inside
00:19:23 --> 00:19:26 the executive branch. Here's what they said in
00:19:26 --> 00:19:29 this administrative opinion. Based on the plain
00:19:29 --> 00:19:32 language of section 235(b)(2)(A) of the Immigration
00:19:32 --> 00:19:34 and Nationality Act, immigration judges lack
00:19:34 --> 00:19:37 authority to hear bond requests or to grant bond
00:19:37 --> 00:19:40 to aliens who are present in the United States
00:19:40 --> 00:19:43 without admission. OK, let's walk through what
00:19:43 --> 00:19:46 that changes in practice. All right. Before that,
00:19:46 --> 00:19:48 somebody who entered the country without inspection,
00:19:49 --> 00:19:51 who was picked up later, it could be years later
00:19:51 --> 00:19:54 or decades later, could ask the judge for a bond.
00:19:54 --> 00:19:56 And the judge would decide whether they were
00:19:56 --> 00:19:59 a flight risk or a danger. And if not, release
00:19:59 --> 00:20:02 them while the case ran. So this was like all
00:20:02 --> 00:20:05 the regular people with regular families. After
00:20:05 --> 00:20:07 that, the judge had no authority to hold the
00:20:07 --> 00:20:09 hearing at all. The Board reasoned that people
00:20:09 --> 00:20:11 who entered without inspection were still applicants
00:20:11 --> 00:20:14 for admission, so they fell under mandatory detention
00:20:14 --> 00:20:17 provisions. Even someone who's been here 25 years
00:20:17 --> 00:20:20 with a family and no record. Yeah, the Board
00:20:20 --> 00:20:22 said that the judges had been holding these hearings
00:20:22 --> 00:20:24 for years and that the Immigration Service itself
00:20:24 --> 00:20:27 had said in 1997 that such people would be eligible
00:20:27 --> 00:20:29 for bond. But it said that the statute's
00:20:29 --> 00:20:32 plain language required the other result. And
00:20:32 --> 00:20:34 a Board decision binds every immigration judge
00:20:34 --> 00:20:37 in the country. Yes, every single one. So a judge
00:20:37 --> 00:20:39 who thinks the Board read the statute wrong still
00:20:39 --> 00:20:42 has to apply it anyway, which is what Donoso
00:20:42 --> 00:20:45 Stevens said that she did. Her disagreement was
00:20:45 --> 00:20:48 about this gap. It was people who came as children
00:20:48 --> 00:20:50 without a parent and had since turned 18 who
00:20:50 --> 00:20:53 she thought fell under different rules. Those
00:20:53 --> 00:20:55 were the people that she granted a bond to. And
00:20:55 --> 00:20:56 those are the four that she said she was told
00:20:56 --> 00:21:00 to vacate. So the dispute wasn't defiance of
00:21:00 --> 00:21:02 the Board. It was about whether the Board's rule
00:21:02 --> 00:21:04 reached a category it hadn't discussed. Yes.
00:21:04 --> 00:21:07 And her reading was hardly some sort of outlier.
00:21:07 --> 00:21:09 Most of the federal appellate courts that have
00:21:09 --> 00:21:11 reached this issue have rejected the government's
00:21:11 --> 00:21:14 position, including the Fourth Circuit, which
00:21:14 --> 00:21:17 covers Virginia. Which is the setting where independence
00:21:17 --> 00:21:19 actually matters. The Supreme Court granted review
00:21:19 --> 00:21:23 on October 1st in Rhoney v. Barbosa da Cunha, so
00:21:23 --> 00:21:25 it will decide which detention provision applies
00:21:25 --> 00:21:28 this term. So if the immigration judge can't
00:21:28 --> 00:21:30 give you a bond hearing, your route is a separate
00:21:30 --> 00:21:33 habeas case in federal court. Yes, a second lawsuit
00:21:33 --> 00:21:35 with its own filing fee and its own schedule
00:21:35 --> 00:21:38 brought while you are currently detained. Which
00:21:38 --> 00:21:42 most people can't bring. And then in the meantime...
00:21:42 --> 00:21:45 Thousands were held, many of them just gave
00:21:45 --> 00:21:47 up and agreed to leave rather than wait out the
00:21:47 --> 00:21:49 appeals, which is the Sackett problem again.
00:21:49 --> 00:21:51 You can be right eventually, but still lose because
00:21:51 --> 00:21:54 the timeline outlasts you. Okay. Then we have
00:21:54 --> 00:21:57 the structural question. If the problem is that
00:21:57 --> 00:21:59 the judge sits inside the department that runs
00:21:59 --> 00:22:02 the enforcement side, the fix seems obvious.
00:22:02 --> 00:22:06 So why don't we just move the court? So that's
00:22:06 --> 00:22:08 definitely a proposal. It's been around for decades.
00:22:09 --> 00:22:11 An Article I immigration court like the Tax Court
00:22:11 --> 00:22:14 or the Court of Appeals for Veterans Claims that
00:22:14 --> 00:22:16 could have judges with fixed terms who are removable
00:22:16 --> 00:22:18 for cause who are outside the Justice Department.
00:22:19 --> 00:22:21 Bar associations have endorsed this for years
00:22:21 --> 00:22:23 and bills have been introduced in Congress. Even
00:22:23 --> 00:22:27 this Congress. What stops it? The votes. The
00:22:27 --> 00:22:29 current bills are Democratic and they haven't
00:22:29 --> 00:22:31 attracted Republican support. And an administration
00:22:31 --> 00:22:34 of either party gives up real control if the
00:22:34 --> 00:22:37 court moves. But the idea isn't partisan in origin.
00:22:37 --> 00:22:39 Judges and bar groups have pushed for it across
00:22:39 --> 00:22:41 administrations, and the complaint that these
00:22:41 --> 00:22:43 courts sit too close to enforcement predates
00:22:43 --> 00:22:47 this by decades. OK, so let me make the case
00:22:47 --> 00:22:50 against it, just as devil's advocate. These aren't
00:22:50 --> 00:22:52 criminal courts. Nobody's being punished. The
00:22:52 --> 00:22:55 proceeding is civil. And what the judge decides
00:22:55 --> 00:22:58 is whether a noncitizen qualifies for a discretionary
00:22:58 --> 00:23:01 benefit Congress has created. And on that view,
00:23:01 --> 00:23:04 calling them judges is the category error. The
00:23:04 --> 00:23:07 independence complaint assumes a judicial model
00:23:07 --> 00:23:11 of this system that it never adopted. And when
00:23:11 --> 00:23:14 we add the obvious that enforcement is an executive
00:23:14 --> 00:23:17 function tied to foreign policy and an elected
00:23:17 --> 00:23:20 administration is entitled to carry out the policy
00:23:20 --> 00:23:23 it ran on, it seems like this may not be the
00:23:23 --> 00:23:25 strongest case for an independent judiciary.
00:23:25 --> 00:23:28 Congress didn't have to create asylum. Having
00:23:28 --> 00:23:31 created it, it required a hearing. This hearing
00:23:31 --> 00:23:33 on whether somebody meets statutory criteria
00:23:33 --> 00:23:36 is an adjudication, whatever kind of label you
00:23:36 --> 00:23:38 put on the proceeding. And the Court said a century
00:23:38 --> 00:23:41 ago that deportation may mean the loss of all
00:23:41 --> 00:23:43 that makes life worth living. Which doesn't answer
00:23:43 --> 00:23:47 the pace argument, though. It doesn't. That argument
00:23:47 --> 00:23:50 also matters on priorities. Who gets prosecuted?
00:23:50 --> 00:23:52 Which cases get brought? How resources are allocated?
00:23:53 --> 00:23:56 That's the executive's call. Where it runs out
00:23:56 --> 00:23:58 is the individual adjudication. The decision
00:23:58 --> 00:24:01 whether this person on this record qualifies
00:24:01 --> 00:24:03 for relief that Congress created isn't some sort
00:24:03 --> 00:24:05 of policy choice. It's an application of law
00:24:05 --> 00:24:08 to facts, and the statute says the person gets
00:24:08 --> 00:24:11 a hearing. Creating a formally separated court
00:24:11 --> 00:24:14 doesn't fix the backlog, and it could even make
00:24:14 --> 00:24:18 it worse. Yes. Independence doesn't staff courtrooms
00:24:18 --> 00:24:20 or clear millions of cases, and it certainly
00:24:20 --> 00:24:23 isn't being sold as a fix for the backlog. It's
00:24:23 --> 00:24:24 a different problem with a different kind of
00:24:24 --> 00:24:27 solution. Okay. Is there anything short of that
00:24:27 --> 00:24:31 then? There are a few other options. We could
00:24:31 --> 00:24:32 put the independent judgment protection in the
00:24:32 --> 00:24:34 statute instead of a regulation that the Attorney
00:24:34 --> 00:24:37 General controls. We could give these judges
00:24:37 --> 00:24:39 the removal protection that administrative law
00:24:39 --> 00:24:41 judges have. Although, again, I would argue right
00:24:41 --> 00:24:45 now that is functionally nothing. And we could
00:24:45 --> 00:24:47 require that any direction about a pending case
00:24:47 --> 00:24:50 has to go in writing in the file. And then there's
00:24:50 --> 00:24:51 the one that builds on what I've been doing this
00:24:51 --> 00:24:53 summer about creating additional independence
00:24:53 --> 00:24:57 for ALJs. We can move these judges out of the
00:24:57 --> 00:25:00 executive branch, even if the system itself stays
00:25:00 --> 00:25:02 in the executive branch. Even just requiring
00:25:02 --> 00:25:05 directions in the file would change a great deal.
00:25:05 --> 00:25:07 It doesn't limit anyone's authority. It just
00:25:07 --> 00:25:10 means the instruction leaves a trace. Which is
00:25:10 --> 00:25:12 the only reason that we know about any of this.
00:25:12 --> 00:25:15 The judge kept notes. OK, so where does that
00:25:15 --> 00:25:18 leave us then? We have a system that gave the
00:25:18 --> 00:25:21 Attorney General a ton of lawful control. Immigration
00:25:21 --> 00:25:24 judges working inside the executive branch. They
00:25:24 --> 00:25:26 can be managed like normal judges. Their dockets
00:25:26 --> 00:25:28 can be reassigned. The Board can reverse them.
00:25:28 --> 00:25:31 The Attorney General can exercise formal review
00:25:31 --> 00:25:33 authority. And things like completion standards
00:25:33 --> 00:25:36 are totally ordinary. And particularly after
00:25:36 --> 00:25:39 Slaughter, the idea that they could be removed
00:25:39 --> 00:25:42 isn't a hard question either. What we described
00:25:42 --> 00:25:45 is expressly authorized. The line is the one
00:25:45 --> 00:25:48 place it isn't, when someone skips those mechanisms
00:25:48 --> 00:25:50 and tells the judge how to decide the case in
00:25:50 --> 00:25:53 front of her. Yes, that is the whole thing that
00:25:53 --> 00:25:55 the regulations were supposed to prevent. And
00:25:55 --> 00:25:58 if Donoso Stevens's account is accurate, that
00:25:58 --> 00:26:01 is exactly the line that was crossed. Which makes
00:26:01 --> 00:26:03 the practical problem pretty obvious. A rule
00:26:03 --> 00:26:06 against interference only works if there's some
00:26:06 --> 00:26:08 way to know the interference happened. Yes. If
00:26:08 --> 00:26:10 the government files a motion, there's a record.
00:26:10 --> 00:26:12 If the Board reverses a judge, there's a decision.
00:26:13 --> 00:26:15 If the Attorney General takes the case through
00:26:15 --> 00:26:17 formal review, there's something lawyers and
00:26:17 --> 00:26:19 judges can see. A phone call, like what she said
00:26:19 --> 00:26:22 happened here, is totally different. So that
00:26:22 --> 00:26:23 does it for today's episode of Administrative
00:26:23 --> 00:26:26 Remedies. Thank you for joining us today. Please,
00:26:26 --> 00:26:29 if you enjoy this podcast and enjoy this episode,
00:26:29 --> 00:26:33 give us a like on Spotify, iTunes, or whatever
00:26:33 --> 00:26:35 platform you're listening on. And be sure to
00:26:35 --> 00:26:37 tune in next time where we'll continue to dive
00:26:37 --> 00:26:39 into the contours of administrative law. Because
00:26:39 --> 00:26:42 remember, you can't fix what you don't understand.