When a Judge Is Told to Reverse Her Own Decisions: The Annandale Immigration Court Case

On a Wednesday morning in January, an immigration judge in Annandale, Virginia called her courtroom to order. A dozen attorneys appeared remotely, representing people being held in immigration detention. Partway through the hearing, her supervisor opened the courtroom door and asked whether she was on the record. She called a recess and stepped into the hallway. According to her account, her supervisor told her she was being removed from the detained docket — the one she was on — immediately. She asked why. He said he didn’t know. She asked whether she could go back and finish the hearing she was already conducting. He said no. She went back in, told the lawyers she would no longer be allowed to finish their hearing, and left the courtroom. Her replacement was already waiting in the hallway. Her name is Karen Donoso Stevens. She had been an immigration judge for nearly a decade. Before that, she spent another decade as a Homeland Security prosecutor. The Washington Post reported her account on November 16, 2025. Everything that follows turns on powers the executive branch unquestionably has — and on one line it is not supposed to cross.

This is a one-off episode, interrupting the normal season arc because the Post story matters for how immigration adjudication actually works. We’ve covered the structural setup before. Immigration judges aren’t Article III judges. They aren’t administrative law judges under the APA either. They are attorneys the Attorney General appoints under 8 C.F.R. § 1003.10, which describes them with two phrases in the same breath — they “shall act as the Attorney General’s delegates” and “shall exercise their independent judgment and discretion.” Those phrases are in tension, and the whole architecture of the system turns on how you resolve the tension. Delegation means the judge is exercising authority that belongs to the Attorney General. Independent judgment means she decides each case for herself, not the way someone upstream wants her to decide it. One is formal review at the top of the adjudicative process. The other is interference with the decision-maker before that process has run.

The scale of the immigration court system is often underappreciated. Approximately 700 immigration judges — about as many adjudicators as there are federal district judgeships in the entire country — operate across roughly sixty courts, with a backlog that passed four million cases. The right to counsel does not attach because the proceedings are civil. Children appear without lawyers. On the other side of the room is a Homeland Security attorney who does this full time. What the judge usually decides is whether a removable person qualifies for something that lets them stay. The biggest category is asylum. Credibility is often the whole case. Who sits in the room is not a procedural detail. And unlike ALJs, immigration judges do not even have the (admittedly shaky) statutory tenure protections the Merit Systems Protection Board was designed to enforce. They work for the Department of Justice. Their supervisors work for the Department of Justice. The appellate body — the Board of Immigration Appeals — sits inside the Department of Justice. The Attorney General can appoint them, reassign their dockets, direct the Board, and reach down to pull a decided case up for his own review. The Supreme Court approved this basic structure in Marcello v. Bonds (1955), holding that Congress had created a separate system for immigration proceedings that displaces the APA’s separation-of-functions requirements. What Marcello did not do was collapse the distinction between the Attorney General’s formal authority over the system and interference with the judge inside the case.

The constraint on that interference is older than Marcello. In Accardi v. Shaughnessy (1954), a man facing deportation alleged that the Attorney General had circulated a confidential list of people he wanted deported, and that Accardi’s name was on the list before the Board ever considered his case. The Supreme Court held that he was entitled to a hearing on the allegation — not because the Attorney General lacked the power to decide the case himself, but because he had written regulations giving the Board the discretion to decide it. The holding ran: “as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.” The constraint isn’t on the Attorney General’s power. It is on his power to have it both ways. The doctrine has had a long afterlife — in military discharge cases, in benefits cases, in employment cases — standing for the proposition that an agency that gives itself binding procedures has to follow them while they are in force. What Accardi does not do is prevent the Attorney General from rewriting the regulation. Nothing is stopping that but Congress. Accardi polices the gap between what the rules say and what the agency does. On remand, Accardi himself lost at the hearing he had won the right to hold — the Attorney General testified that there was no list, the district court found the Board had decided free of any dictation, and the Supreme Court affirmed in 1955. The doctrine is real. The man was still deported.

The allegation out of Annandale fits inside Accardi’s logic precisely. In September 2025, the Board of Immigration Appeals decided Matter of Yajure Hurtado, holding that immigration judges “lack authority to hear bond requests or to grant bond to aliens who are present in the United States without admission.” On Donoso Stevens’s account, she followed the Board’s rule — but concluded that it had left one category unresolved: people who had been brought to the United States as unaccompanied children and had since turned eighteen. Four people in that situation came before her. She concluded they were still eligible for bond hearings, and granted bond. Her supervisor called. He said that bonds were “a hot topic” and that those four cases had been elevated. He sent her a federal district court decision from New York that pointed the other way — a decision that did not bind her as an immigration judge in Virginia. She read it and told him she could see the argument. Then he called back. According to her contemporaneous notes, he said that unnamed higher-ups required her to vacate the four decisions herself, on her own motion, without Homeland Security filing anything. She asked why DHS could not file a motion to reconsider or take an appeal. She says she was told they weren’t going to do that. On paper, the vacaturs would look sua sponte — a judge who had made a decision and spontaneously reconsidered it. She vacated all four. She says she considered refusing, and still debates whether it was right to go along.

The Justice Department’s response to the Washington Post was a general denial — the Department “adjudicates cases impartially, does not view adjudication in terms of desired outcomes, and has no stake in any particular result.” Last summer, the official leading the Executive Office for Immigration Review issued a memo saying, as the Post reported it, that no one in that office may direct an adjudicator to rule in a particular way. On paper, that is Accardi restated as internal policy. In Annandale, the allegation is that the opposite happened. Donoso Stevens was removed from her detained docket mid-hearing in January. She was fired in May — about nine months before she would have been eligible for her pension. A month earlier, her supervisor had signed a performance review giving her the highest rating available and thanking her for clearing a backlog of motions. The termination letter gave no reason. It cited Article II — the president’s inherent authority to remove whoever he feels like. That is the Trump v. Slaughter argument applied to the easiest possible case. If the president can remove an FTC commissioner over a statute that says otherwise, a Justice Department attorney serving at the Attorney General’s pleasure is not a close question. These judges never had any sort of protection. They never had Humphrey’s Executor. The removal is almost certainly within executive authority. The underlying bond-vacatur instruction is not.

What this does to actual immigration cases is substantial. Before Matter of Yajure Hurtado, somebody who entered the country without inspection and was picked up later — sometimes decades later — could ask the judge for a bond hearing. The judge would decide whether the person was a flight risk or a danger and, if not, release them while the case ran. After the Board’s decision, the judge has no authority to hold the hearing at all. The Board reasoned that people who entered without inspection are still “applicants for admission” subject to mandatory detention. The Board acknowledged that judges had been holding these hearings for years and that the Immigration Service itself had said in 1997 that such people would be eligible for bond — but concluded that the statute’s plain language required the other result. A judge who thinks the Board read the statute wrong still has to apply it. Most federal appellate courts to reach the issue have rejected the government’s position, including the Fourth Circuit, which covers Virginia. The Supreme Court granted certiorari in Rhoney v. Barbosa da Cunha on October 1, 2025, and will decide which detention provision applies this term. If the immigration judge can’t give you a bond hearing, your only route is a separate habeas case in federal court — a second lawsuit, with its own filing fee and its own schedule, brought from inside detention. Most people cannot bring it. Thousands have been held while the appeals run. Many just give up and agree to leave rather than wait out the timeline. That is the Sackett problem again — right eventually, but losing because the timeline outlasts you.

The structural fix most often proposed is an Article I immigration court — a court outside the Justice Department, modeled on the Tax Court or the Court of Appeals for Veterans Claims, with judges holding fixed terms and removable only for cause. Bar associations have endorsed the idea for years. Bills have been introduced across administrations. What stops it is votes. The current bills are Democratic and have attracted no Republican support. The devil’s-advocate case against is real: immigration proceedings are civil, not criminal; what the judge decides is whether a noncitizen qualifies for a discretionary benefit Congress created; enforcement is an executive function tied to foreign policy; an elected administration is entitled to carry out the policy it ran on. The response is that having created asylum, Congress required a hearing — and the hearing on whether somebody meets statutory criteria is an adjudication, whatever label you attach to the proceeding. The Supreme Court said a century ago that deportation may mean “the loss of all that makes life worth living.” Priorities, resource allocation, and which cases get brought are the executive’s call. What runs out is the individual adjudication. The decision whether this person on this record qualifies for relief Congress created is not a policy choice; it is an application of law to facts. Short of an Article I court, there are smaller fixes — putting the independent-judgment protection in the statute instead of a regulation the Attorney General controls, giving these judges the (nominal) protections ALJs have, moving them out of the executive branch even while the system stays there, or requiring that any direction about a pending case be put in writing in the file. The last one would change a great deal without limiting anyone’s authority. It would just mean the instruction leaves a trace. The only reason we know about the Annandale case is that the judge kept notes. The practical problem is obvious. A rule against interference only works if there’s some way to know the interference happened. If the government files a motion, there is a record. If the Board reverses a judge, there is a decision. If the Attorney General takes the case through formal review, there is something lawyers and judges can see. A phone call is not.

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Full Rough Transcript

Opening

Gwen: Welcome to Administrative Remedies, because you can't fix what you don't understand. Brought to you in part by the University of Tulsa College of Law's Mabee Legal Information Center. I'm Gwendolyn Savitz, an associate professor here at TU.

Marc: And I'm Marc Roark, a professor at the College of Law. We'll be breaking down complex doctrines with real-life analogies and examples, to demystify the world of administrative law for everyone trying to understand how government actually works.

Gwen: Agencies are the main way the federal government gets things done. It's not through Congress, for reasons we'll be addressing over the course of the series.

Marc, we were supposed to finish the introductory topics today — all the stuff before you get through the courthouse door. However, we're going to pause that for a week.

Marc: It sounds like something has happened.

Gwen: An article came out in the Washington Post on Sunday, and it will be linked in the notes for the show, talking about the stuff we're going to be talking about here today. This is based on that article. It is really important that we can actually talk through this stuff and put context behind it.

Marc: So what happened?

Gwen: On a Wednesday morning in January, there was an immigration judge in Annandale, Virginia. She called her courtroom to order. There were a dozen attorneys who were all appearing remotely. They're representing people being held in immigration detention. And then partway through the hearing, her supervisor opened the courtroom door and asked whether she was on the record.

Marc: OK, that's a really weird question to ask in the middle of court.

Gwen: She thought so too. So she called a recess and stepped into the hallway. And according to her account, her supervisor told her that she was being removed from the detained docket — the one that she was on — immediately. So she asked why. He said he didn't know. She asked whether she could go back and finish the hearing she was doing. He said no.

Marc: So she was immediately pulled off the case while the hearing was actually happening.

Gwen: Yes. So she went back in and told the lawyers she was informed she would no longer be allowed to finish their hearing, and left the courtroom. And at that point, her replacement was already waiting in the hallway.

Marc: OK, somebody had already decided this course of events was going to happen.

Gwen: Yes, exactly. So her name was Karen Donoso Stevens. She had been an immigration judge for nearly a decade. And before that, she spent another decade as a Homeland Security prosecutor. She'd been appointed in 2016 by Attorney General Loretta Lynch after a lengthy selection process. And she was Annandale's most experienced judge handling detained cases. And she wasn't some sort of crazy outlier. She denied most of the asylum claims she heard. She met her deadlines. And according to the Washington Post reporting, she was generally viewed as someone who followed the law, whether the result favored the government or the immigrant.

Marc: Who had the legal authority to do this?

Gwen: Her employer did. We've talked about judges who aren't part of the regular federal judiciary. Immigration judges are definitely in that category, but they're less protected than ALJs. They work for the Department of Justice and the Executive Office for Immigration Review. And the lawyers seeking removal on the other side — the people trying to go after the immigrants — work for the Department of Homeland Security.

Marc: So they're in different departments, but the same executive branch.

Gwen: And this entire adjudicative structure above that immigration judge — her supervisors, the Board of Immigration Appeals, ultimately the Attorney General — that's all still inside the executive branch.

Marc: So it looks like a court. It functions like a court in a lot of ways. But the judge is also not independent, and is an executive branch employee.

Gwen: Yes. This matters because months before she'd been pulled from the courtroom, she said that one of her supervisors told her that unnamed higher-ups wanted four bond decisions that she'd already issued reversed. And this wasn't a Board of Immigration Appeals reversing her. That would have been totally normal, ordinary appellate review. No one had appealed and obtained a ruling saying that she was wrong. What she said is that the instruction came back to her. She was supposed to reopen the cases and reverse her own decisions on her own initiative.

Marc: So instead of the government challenging the rulings through the adjudicative process, someone above the judge was allegedly telling the original decision maker to change them herself.

Gwen: Yes, that's the distinction. So a supervisor managing her docket is one thing. The Board reversing her on appeal — that's what appellate review is for. Those are both fine. But telling a judge who decided the case to undo her own ruling because the people above her want a different result is something else. And on her account, when she said the government should just appeal, she was told it wouldn't.

Marc: OK, before we go further, how much of her account do we actually know?

Gwen: She was keeping contemporaneous notes during this process, as all of this stuff was happening. And there were other people who were present for parts of it, and they've corroborated the stuff they were there for to the Post. The official she named didn't respond to the paper's questions about her specific allegations. And the Justice Department said that it adjudicates cases impartially, does not view adjudication in terms of desired outcomes, and has no stake in any particular result.

Marc: OK, so we have a detailed account with some corroboration and a general denial from the agency, but not a factual finding that everything she says happened exactly the way she said it.

Gwen: Right. This episode isn't so much about deciding whether she's telling the truth. It's about the system she's working inside, because almost everything we're going to talk about today turns on powers that nobody questions the executive branch has. But the interesting part is that there is that one line it's not supposed to cross.

Marc: Decide a case.

Gwen: Exactly.

Segment 1 — What an immigration judge is

Marc: OK, let's start with where they come from. If Congress didn't create these judgeships, who exactly did?

Gwen: Congress did, up to a point. The Act defines an immigration judge as an attorney the Attorney General appoints and assigns to removal proceedings. What Congress didn't do is create a court. There are no judicial officers. There are no fixed terms. This isn't even anything like the Tax Court, which itself is already kind of a little mini, not totally normal court. It left them inside the Attorney General's administrative structure. And the details come from a regulation that says two things in the same breath. Here, this is 8 C.F.R. § 1003.10.

Marc: OK. Immigration judges are attorneys whom the Attorney General appoints as administrative judges. Immigration judges shall act as the Attorney General's delegates in cases that come before them. And immigration judges shall exercise their independent judgment and discretion.

So it describes them as delegates of the Attorney General exercising independent judgment. Those two phrases seem like they are in tension.

Gwen: The judge is exercising authority that belongs to the Attorney General. Congress gave the Attorney General the power to decide these cases, and the Attorney General in turn has delegated it down to the judges. And within that delegation, the judge is supposed to decide everything for herself.

Marc: So she is exercising the Attorney General's authority, but the regulation also says the Attorney General's delegate has to exercise independent judgment. So, I mean, if I'm being critical, that works only if "delegate" means you have this authority to decide, not you have to decide the way I want you to decide.

Gwen: Right. Which is how it has always been understood. And the Attorney General still has authority over the system. The Attorney General appoints the immigration judges. After the Board of Immigration Appeals decides a case, the Attorney General can refer the decision to himself and issue the final administrative ruling. But that's different from telling the immigration judge how to decide the case in the first place. One is formal review at the top of the adjudicative process. The other is interference with the decision maker before that process has run.

Marc: The structure gives the Attorney General enormous control over the law and even the final outcome, but it still preserves a separate space where the immigration judge is supposed to make the initial decision independently.

Gwen: Yes. And the appellate body has the same design. The Board of Immigration Appeals sits inside the Justice Department too. Its members are also appointed by the Attorney General. And it's described in a parallel regulation as his delegates who exercise independent judgment. Same structure, one level up.

Marc: So until a federal court of appeals, every decider in the chain works for the Attorney General.

Gwen: Yes, within the agency. After that, you go to the federal court of appeals, which is where the real judicial review starts to happen.

Marc: OK, give me the scale of this. How much adjudication are we talking about?

Gwen: There's about 700 judges — or there were, before we started seeing firings. This was across about sixty courts, and there was a backlog that had passed four million cases.

Marc: That's about as many adjudicators as there are federal district judgeships in the entire country. So this is a court system the size of the federal trial bench deciding whether people get deported. And no right to appointed counsel.

Gwen: Right. This is a civil proceeding. If you can't afford a lawyer, you appear without a lawyer. This means children appear without a lawyer. On the other side of the room is a Homeland Security attorney who does this full time.

Marc: So what is the judge actually deciding, then?

Gwen: It's usually whether someone who is removable qualifies for something that lets them stay. So the biggest one is asylum. This is whether somebody has past persecution or a well-founded fear of it on a protected ground, and the applicant needs to make their case. Your own testimony can be sufficient if the judge believes you.

Marc: Okay, so the credibility finding is the whole case.

Gwen: It certainly can be, which is why who sits in the room isn't some sort of procedural detail.

Marc: OK, we spent a season on adjudicators. These aren't administrative law judges in the sense that we use that term.

Gwen: Yes, and this bears repeating. An administrative law judge under the APA theoretically is supposed to have statutory protections against removal. There's good cause established before the Merit Systems Protection Board, and they're supposed to not be evaluated on how cases come out. I think these are incredibly shaky protections. I've written about that. But immigration judges don't even have these theoretical protections.

Marc: Has the Supreme Court ever dealt with that structure directly?

Gwen: It did, in 1955, in Marcello v. Bonds. The argument was that deportation hearings had to follow the APA's hearing structure, and part of that would require separation between the people involved in enforcement and the people doing the adjudicating. And the Supreme Court said no. Congress had created a separate system for immigration proceedings, and that system displaced any relevant APA protections.

Marc: So the Court accepted the basic structure that we still have — adjudication inside the Attorney General's chain of authority.

Gwen: Yes, it did. But there was also an important qualification. The Court pointed out that under the regulations, the Attorney General could not simply dictate what the Board had to decide. And that basic distinction still holds today. The Attorney General retains formal review authority, but the adjudicators assigned the case are still supposed to be exercising their own independent judgment, unless and until that review process is used.

Marc: Not because the Attorney General lacked ultimate authority over immigration adjudication, though.

Gwen: Right. We just talked about how the Attorney General can exercise that authority directly through the procedures that the system has. The point is, though, that if a regulation gives the decision to the Board or to an immigration judge and tells that adjudicator to exercise independent judgment, the Attorney General can't leave that delegation in place and simultaneously dictate the answer. Again, it's the difference between exercising authority through the system and reaching into somebody else's decision.

Segment 2 — The line that is supposed to hold

Marc: OK, if the Attorney General still has ultimate authority over the system, though, what actually prevents that authority from turning into instructions about how a particular judge should decide a particular case?

Gwen: There's a couple of things. One is the regulation we just read. And the second is a case from 1954, Accardi v. Shaughnessy. A man was facing deportation and he applied for discretionary relief from the Board of Immigration Appeals. He alleged that the Attorney General had circulated a confidential list of people he wanted deported, and that the man's name was on it before the Board ever considered his case.

Marc: So the decision maker had been handed the answer in advance.

Gwen: Yes, that's what he was arguing. And the Supreme Court said that he was entitled to a hearing on it — not because the Attorney General lacked the power to decide the case himself, but because he'd written regulations that gave the Board the discretion to decide it. Here is what it said in the case: as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.

Marc: So the constraint isn't on his power. It's on his power to have it both ways.

Gwen: Yes. And this sentence had a long afterlife. Courts cited Accardi for the general rule that when an agency gives itself binding procedures — especially procedures that protect the people dealing with the agency — it has to follow those procedures while they're in force. The doctrine has shown up in military discharge cases, in benefits cases, in employment cases. It goes way beyond immigration.

Marc: Though notice what it doesn't do. It doesn't stop the Attorney General from rewriting the regulation tomorrow and deciding every case himself.

Gwen: Right. Nothing is stopping that but Congress. Accardi polices the gap between what the rules say and what the agency does. It doesn't say anything about what the rules themselves have to say.

Marc: The agency has to follow its own regulations.

Gwen: Yes. But he won the right to prove his allegation. And when he went back to the district court, he had his hearing and he lost. The Attorney General testified that there was no list, that his investigation had shown Accardi was a racketeer, and that he'd never discussed the case with any Board member. The court found the Board had decided free of any dictation. And in 1955, the Supreme Court affirmed.

Marc: So the doctrine is real and the man is still deported.

Gwen: Yes. And at the time, Justice Black dissented, and he said that the prejudgment had been proved beyond any question.

Marc: But regardless, the guy got his hearing and the hearing went against him. And yet the rule has survived him.

Gwen: Yes. It's the reason that independent judgment language in that regulation isn't just decorative. The Attorney General can change the regulation. What he can't do is leave it in place and work around it.

Marc: Which puts a lot of weight on whether anyone can find out that it happened.

Gwen: Yes. And that's a practical problem. Last summer, the official leading the agency that runs the immigration courts issued a memo saying, as the Post reported it, that no one in that office may direct an adjudicator to rule in a particular way. On paper, that's Accardi restated as internal policy.

Marc: And the allegation in Annandale is that the opposite occurred.

Gwen: Yes. So more specifically, what happened? Her account is that in September of 2025, the Board of Immigration Appeals had just issued a major decision, and it said that people who entered the country unlawfully generally could not get bond from an immigration judge while their case was pending. So she says she followed that rule, but she thought that it left one category unresolved: people who'd been brought to the United States as unaccompanied children and had since turned eighteen. So there were four people in that situation who came before her, and she concluded that they were still eligible for bond hearings, and she granted bond.

Then her supervisor called, and he said that bonds were a hot topic and that those four cases had been elevated. He sent her a federal district court decision from New York that pointed the other way — a decision that did not bind her as an immigration judge in Virginia. She read the decision and told him she could see the argument. And then he called back. So according to her notes, he said that unnamed higher-ups required her to vacate the four decisions herself, on her own motion, without Homeland Security filing anything. So she asked the obvious question you should be thinking too, which is, why couldn't DHS file a motion asking her to reconsider, or do an appeal? And she says she was told that they weren't going to do that.

Marc: And what does the file show afterward? Nothing about a phone call, presumably.

Gwen: Yes. So what it says is that this was sua sponte, meaning on the court's own initiative. It would just look like a judge who'd made a decision and then spontaneously reconsidered it.

Marc: And did she?

Gwen: She did. She vacated all four decisions. She says she considered refusing, but that she went along partly because she thought the New York decision had some force. She also says that she still debates whether that was right.

Marc: OK, that reads less like pressure than like an order. A supervisor telling her that people above him required it, and that the department wasn't going to file anything.

Gwen: Yes. On her account, that is absolutely what it sounds like. What she didn't say was an explicit consequence. Nobody said what would happen if she refused. But by then she'd already watched colleagues get fired, so nobody had to say that part.

Marc: And she had been told the one route that would have created the record wasn't available.

Gwen: Yes, which is the part that would have mattered in court if this had ever gotten to a court for review. We're talking about somebody outside the proceeding reaching into a pending case and telling the adjudicator what result to produce.

Marc: And the test isn't whether anyone above her can say she got it wrong. Of course they can. It's whether they do it through the adjudicative hierarchy or around it.

Gwen: Right. That's that bright line that the regulation draws. It is the only one that can be drawn without pretending that these judges are something they aren't.

Segment 3 — Management pressure and the quota problem

Marc: OK, so there's another piece of this we've talked about before. Last season, when we were looking at agency adjudication, we spent an episode on all the different ways agencies can influence adjudication without ever telling a judge how to decide a particular case.

Gwen: Yeah. We talked about training, performance reviews, case completion targets, quality reviews.

Marc: And you were really careful about it then — that those things aren't inherently improper, and agencies do have to manage their adjudicators. And the problem we were looking at was the cumulative pressure they can create even when nobody ever says "deny this claim" or "decide this case for the government."

Gwen: Yes. And immigration courts already had the same problem with much less insulation around the judge. Case completion quotas came into the immigration system during the first Trump administration. Judges had numerical completion requirements tied to performance reviews. And the current administration has again emphasized speed and reducing a backlog that had grown past four million cases.

Marc: And as we said last season, caring about the backlog isn't the problem. People waiting years for hearings is a real failure of the system.

Gwen: Yes. Here, if her account is accurate, you have something much more direct than that kind of ambient pressure. We have a direct command to change the decisions.

Marc: OK. And was she removed?

Gwen: Yes, she was. In May. This was about nine months before she would have been eligible for her pension. A month earlier, her supervisor had signed a performance review giving her the highest rating available and thanking her for clearing a backlog of motions. The termination letter gave no reason. Like most of them, it just cited Article II, meaning the president's inherent authority to remove whoever he feels like.

Marc: Which is the Slaughter argument applied to the easiest possible case. If the president can remove an FTC commissioner over a statute that says otherwise, a Justice Department attorney serving at the Attorney General's pleasure isn't a close question.

Gwen: Right. That part's easy. These judges never had any sort of protection. They never had Humphrey's Executor. They never had anything helping them. But it still doesn't resolve the suit. She's appealing, and she's one of at least a dozen former immigration judges arguing that they were unlawfully dismissed, and those raise other claims.

Segment 4 — What it does to the cases

Marc: OK, so then let's leave the judges for a minute, and let's look at what all this does to the cases themselves.

Gwen: OK, so let's start with bond. In September 2025, the Board of Immigration Appeals decided Matter of Yajure Hurtado. And remember, the Board sits inside the executive branch. Here's what they said in this administrative opinion:

Marc: Based on the plain language of section 235(b)(2)(A) of the Immigration and Nationality Act, immigration judges lack authority to hear bond requests or to grant bond to aliens who are present in the United States without admission.

OK, let's walk through what that changes in practice.

Gwen: All right. Before that, somebody who entered the country without inspection, who was picked up later — it could be years later or decades later — could ask the judge for a bond. And the judge would decide whether they were a flight risk or a danger, and if not, release them while the case ran.

Marc: So this was like all the regular people with regular families.

Gwen: After that, the judge had no authority to hold the hearing at all. The Board reasoned that people who entered without inspection were still applicants for admission, so they fell under mandatory detention provisions.

Marc: Even someone who's been here twenty-five years with a family and no record.

Gwen: Yeah. The Board said that the judges had been holding these hearings for years, and that the Immigration Service itself had said in 1997 that such people would be eligible for bond. But it said that the statute's plain language required the other result.

Marc: And a Board decision binds every immigration judge in the country.

Gwen: Yes, every single one. So a judge who thinks the Board read the statute wrong still has to apply it anyway, which is what Donoso Stevens said that she did. Her disagreement was about this gap. It was people who came as children without a parent and had since turned eighteen, who she thought fell under different rules. Those were the people that she granted a bond to. And those are the four that she said she was told to vacate.

Marc: So the dispute wasn't defiance of the Board. It was about whether the Board's rule reached a category it hadn't discussed.

Gwen: Yes. And her reading was hardly some sort of outlier. Most of the federal appellate courts that have reached this issue have rejected the government's position, including the Fourth Circuit, which covers Virginia.

Marc: Which is the setting where independence actually matters.

Gwen: The Supreme Court granted review on October 1st in Rhoney v. Barbosa da Cunha, so it will decide which detention provision applies this term.

Marc: So if the immigration judge can't give you a bond hearing, your route is a separate habeas case in federal court.

Gwen: Yes. A second lawsuit, with its own filing fee and its own schedule, brought while you are currently detained.

Marc: Which most people can't bring. And then in the meantime —

Gwen: Thousands were held. Many of them just gave up and agreed to leave rather than wait out the appeals, which is the Sackett problem again. You can be right eventually, but still lose because the timeline outlasts you.

Segment 5 — What would fix it, and what it would cost

Marc: Okay. Then we have the structural question. If the problem is that the judge sits inside the department that runs the enforcement side, the fix seems obvious. So why don't we just move the court?

Gwen: So that's definitely a proposal. It's been around for decades. An Article I immigration court, like the Tax Court or the Court of Appeals for Veterans Claims, that could have judges with fixed terms who are removable for cause, who are outside the Justice Department. Bar associations have endorsed this for years, and bills have been introduced in Congress. Even this Congress.

Marc: What stops it?

Gwen: The votes. The current bills are Democratic and they haven't attracted Republican support. And an administration of either party gives up real control if the court moves. But the idea isn't partisan in origin. Judges and bar groups have pushed for it across administrations, and the complaint that these courts sit too close to enforcement predates this by decades.

Marc: OK, so let me make the case against it, just as devil's advocate. These aren't criminal courts. Nobody's being punished. The proceeding is civil. And what the judge decides is whether a noncitizen qualifies for a discretionary benefit Congress has created. And on that view, calling them judges is the category error. The independence complaint assumes a judicial model of this system that it never adopted. And when we add the obvious — that enforcement is an executive function tied to foreign policy, and an elected administration is entitled to carry out the policy it ran on — it seems like this may not be the strongest case for an independent judiciary.

Gwen: Congress didn't have to create asylum. Having created it, it required a hearing. This hearing on whether somebody meets statutory criteria is an adjudication, whatever kind of label you put on the proceeding. And the Court said a century ago that deportation may mean the loss of all that makes life worth living.

Marc: Which doesn't answer the pace argument, though.

Gwen: It doesn't. That argument also matters on priorities. Who gets prosecuted? Which cases get brought? How resources are allocated? That's the executive's call. Where it runs out is the individual adjudication. The decision whether this person on this record qualifies for relief that Congress created isn't some sort of policy choice. It's an application of law to facts, and the statute says the person gets a hearing.

Marc: Creating a formally separated court doesn't fix the backlog, and it could even make it worse.

Gwen: Yes. Independence doesn't staff courtrooms or clear millions of cases, and it certainly isn't being sold as a fix for the backlog. It's a different problem with a different kind of solution.

Marc: Okay. Is there anything short of that, then?

Gwen: There are a few other options. We could put the independent judgment protection in the statute instead of a regulation that the Attorney General controls. We could give these judges the removal protection that administrative law judges have — although, again, I would argue right now that is functionally nothing. And we could require that any direction about a pending case has to go in writing in the file. And then there's the one that builds on what I've been doing this summer about creating additional independence for ALJs. We can move these judges out of the executive branch, even if the system itself stays in the executive branch.

Marc: Even just requiring directions in the file would change a great deal. It doesn't limit anyone's authority. It just means the instruction leaves a trace.

Gwen: Which is the only reason that we know about any of this. The judge kept notes.

Closing

Marc: OK, so where does that leave us, then?

Gwen: We have a system that gave the Attorney General a ton of lawful control. Immigration judges working inside the executive branch. They can be managed like normal judges. Their dockets can be reassigned. The Board can reverse them. The Attorney General can exercise formal review authority. And things like completion standards are totally ordinary. And particularly after Slaughter, the idea that they could be removed isn't a hard question either.

Marc: What we described is expressly authorized. The line is the one place it isn't — when someone skips those mechanisms and tells the judge how to decide the case in front of her.

Gwen: Yes, that is the whole thing that the regulations were supposed to prevent. And if Donoso Stevens's account is accurate, that is exactly the line that was crossed.

Marc: Which makes the practical problem pretty obvious. A rule against interference only works if there's some way to know the interference happened.

Gwen: Yes. If the government files a motion, there's a record. If the Board reverses a judge, there's a decision. If the Attorney General takes the case through formal review, there's something lawyers and judges can see. A phone call, like what she said happened here, is totally different.

So that does it for today's episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you're listening on. And be sure to tune in next time, where we'll continue to dive into the contours of administrative law. Because remember, you can't fix what you don't understand.

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