Two asylum seekers cross the southern border six months apart in early 2022. Both flee gang violence in Honduras. Both pass a credible fear interview. Within their first month in the system, a clerk neither has met routes one of them to a dedicated docket and the other to the regular docket. Six years of difference flows from that single decision. Elena gets her merits hearing in eight months. Rosa is scheduled for 2028. Same statute, same courthouse, same set of underlying facts — and by the time Rosa's case is heard, the law itself will have changed under her feet.

That split is the spine of this two-part deep dive on immigration adjudication, the second-largest adjudication system in the federal government and the one where the structural problems built up over the rest of the season run hottest. The first episode walks through the machinery — the 3.2 million pending cases, the asylum framework, the way Attorney General certification rewrites doctrine through individual cases, and the disappearance of even ordinary civil service protections for immigration judges in 2026. The second episode follows Rosa and Elena into the courtroom and into detention, showing how representation and detention reshape what asylum adjudication actually delivers — and how the constitutional doctrine governing immigration ends up cutting against intuition: higher stakes, thinner floor.

Most of the patterns from earlier in the season show up here, just stronger. The variation is wider. The independence protections for the adjudicator are weaker. The doctrinal rules shift more aggressively, more often, and through a more direct mechanism. The consequences are different in kind — not denial of benefits, but removal to the country the respondent fled. About 700 immigration judges currently handle a pending caseload that works out to roughly 3,200 cases per judge, and 2.3 million of those — about 70% — are asylum claims, which are unusually fact-intensive and frequently require three-to-four-hour merits hearings to do properly. EOIR completed a record 767,000 cases in 2025. The dashboard counts three different kinds of "completion" identically: procedural exits where no judge ever weighed evidence, rocket-docket merits decisions on thin records, and doctrinally foreclosed merits decisions where the rule changed after the case was filed. The numerical backlog reduction is real. What got reduced isn't equivalent across categories.

The asylum framework itself is where most cases live and die. An applicant has to show a well-founded fear of persecution on account of one of five protected grounds — race, religion, nationality, political opinion, or membership in a particular social group — and that the threat comes from the government or from people the government cannot or will not control, with no safe internal relocation available, supported by credible testimony and corroborating evidence. Most Central American claims have to run through "particular social group" because the other four grounds don't fit. That phrase isn't defined in the statute. It has been litigated for forty years, and the question of how broadly or narrowly it can be construed has whipsawed across administrations.

This is where Attorney General certification does its heaviest work, and what makes immigration's doctrinal instability different in kind from ordinary doctrinal evolution. Courts reverse themselves — Loper Bright overruled Chevron, Dobbs overruled Roe. The difference isn't whether the law moves but who moves it and how fast. Roe stood for 49 years. Chevron for 40. The social-group doctrine for survivors of domestic violence has flipped four times in eleven years, each time through a single official acting alone, picking a case, writing the decision, and binding every immigration judge in the country immediately — no majority, no concurrences, no dissents, no stare decisis discipline. Matter of S-S-F-M- in September 2025 is the current example: the AG certified a Honduran woman's case, overruled the Garland-era framework, and reinstated a Sessions-era rule. Rosa's lawyer will argue her 2028 case on facts similar to the S-S-F-M- applicant's, under a rule that already says her theory doesn't qualify, with six-year-old evidence about a country she fled six years ago.

The structural protections that might insulate immigration judges from this kind of pressure have been eroded to a degree most people don't realize. Immigration judges have never been ALJs under the APA. They are Department of Justice employees appointed by the Attorney General, without the APA's separation-of-functions or removal protections. Until March 2026, they at least had ordinary civil service protections under 5 U.S.C. § 7513 — adverse-action procedures, appeal to the Merit Systems Protection Board, the agency having to show cause. Then in March 2026, the MSPB held that two immigration judges fired without notice on Valentine's Day were inferior officers exercising significant policy-making authority, and that the AG's Article II removal power abrogated the otherwise-applicable statutory protections. Immigration judges are now functionally at-will employees of the Attorney General. In February 2025, the Department of Justice separately filed a notice that it would no longer defend ALJ removal protections against constitutional challenges. The protections gap between IJs and ALJs that used to matter is potentially already gone.

What an at-will IJ does differently than a protected one shows up at the margins. An IJ leaning toward granting asylum on a borderline social-group theory knows she can be terminated tomorrow with no notice and no opportunity to respond. No formal mechanism connects the firing to the grant. None has to. The grant is in the docket, the firing happens, and the next IJ in the courtroom watches and adjusts. That structural fact is the pressure. Add to that the case-completion pressure — the 2018 EOIR quotas required 700 cases per year for a satisfactory rating and labeled anything under 560 unsatisfactory — and an IJ navigates two incompatible incentives at once: produce careful, legally defensible decisions on cases where the stakes can be life or death, while completing enough of them to keep her job.

The second half of the series moves from the machinery to the person standing inside it. Two factors reshape what asylum adjudication actually delivers, and immigration is harder than anywhere else in the federal system on both. The first is representation. Immigration is fully adversarial, unlike Social Security's inquisitorial setup. A DHS attorney sits across the room whose job is to argue against asylum. An unrepresented immigrant doesn't just lack a lawyer — they actively face one, often through an interpreter, about traumatic events, in front of a judge whose grant rate might be 4% and whose docket carries 3,200 other cases. Represented asylum seekers win at several times the rate of unrepresented ones. The unrepresented denial rate in detained cases can reach 90%. But there is no right to appointed counsel. Immigration removal is treated as civil, not criminal, so the Sixth Amendment doesn't apply. The statute gives respondents what it calls a "privilege of counsel at no expense to the government." If you can't afford one and local pro bono organizations are full, you represent yourself.

The second is detention. Elena's case in the second episode takes place from inside a rural Louisiana facility — cinderblock walls, fluorescent lights, ninety minutes with a lawyer who drove three hours from New Orleans and probably won't be back for six weeks, with the rocket-docket clock running the same speed it runs from outside. The bond hearing that determines which side of the detention line a respondent ends up on is typically a ten-minute video proceeding in the third week of custody, often without counsel, and is itself an IJ proceeding with the same judge-by-judge variation. Detention doesn't just change how the case feels. It changes what evidence exists in the case. Asylum requires evidence the federal government doesn't have — affidavits from witnesses to the persecution, documentation of threats, medical records from clinics in the home country, expert testimony on country conditions — and that evidence depends on someone outside the facility doing the work. Without representation, it often doesn't make it into the record. A judge required by statute to consider current country conditions then decides on a record without the current country conditions that would have supported the claim. Two respondents with identical underlying facts, one detained and one not, arrive at the merits hearing with materially different records.

The constitutional doctrine governing all of this produces an inversion. Goldberg v. Kelly held that welfare benefits couldn't be terminated without a pre-termination hearing with confrontation rights. Asylum gets less. Two doctrines explain this. The first is plenary power, traceable to the Chinese Exclusion Case (1889), which held Congress's authority over who may enter the country is something close to absolute and largely beyond ordinary constitutional scrutiny. The Court has chipped at the edges for over a century but never overruled it. The second is the line between people inside the country with established ties and people seeking entry. DHS v. Thuraissigiam (2020) held that a respondent apprehended twenty-five yards inside the southern border could be limited by statute to whatever habeas review Congress chose to give him — the Constitution treated him as if he were still outside the country. A January 2025 executive order then directed DHS to expand expedited removal to anyone, anywhere in the United States, who couldn't prove two years of physical presence — testing how far the Thuraissigiam logic can stretch. The D.C. District Court enjoined it; the D.C. Circuit declined to stay the injunction. Where the protected line sits inside the country is the doctrinal question now.

The series is careful about the policy register. A view that controlling entry is a sovereign function and that people who arrive without authorization aren't entitled to the same procedural package as citizens is a real view, held in good faith, with constitutional support under plenary power. The critique doesn't depend on disagreeing with it. The question is narrower: given the statute Congress wrote, which does grant asylum and which sets up a hearing system promising individualized adjudication, is the system delivering what the statute says it should? You can want fewer grants and still want the denials to be the right denials. You can want more admissions and still want the people admitted to be the right people. Either way, the rule-of-law claim is that adjudication should track the law. Reform proposals — an independent immigration court with tenure-protected judges and Article III review — have been endorsed by the American Bar Association, the Federal Bar Association's immigration section, and various bipartisan groups. None has passed. The last major immigration legislation was 1996. The structure most observers identify as the problem is, by default, the structure that will operate for the foreseeable future.

The series closes pointing forward to next season. The natural next question, once a system is producing outcomes this uneven under pressure this direct, is what courts do from the outside. The answer turns out to be less than people imagine. Federal courts review the record the agency made under deferential standards the agency generally benefits from. They don't relitigate credibility. They don't get a second look at country-conditions evidence the respondent couldn't put in front of the IJ because they were detained and couldn't gather it. By the time a case reaches a circuit court, the record is what it is. Judicial review is real and it matters. It's also not the rescue mechanism people sometimes imagine — which is the starting point for next season.

Listen Now — Part 1: 700 Judges, 3.2 Million Cases

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Listen Now — Part 2: No Right to a Lawyer — Asylum From Inside Detention

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What We Cover

• How docket routing — assigning a case to a regular docket vs. an expedited docket — can produce six years of difference on identical underlying facts
• Why immigration adjudication carries a 3.2 million pending caseload, roughly 3,200 cases per IJ, and what that volume does to time-per-case
• How the 2025 record of 767,000 case completions counts procedural exits, rocket-docket merits decisions, and doctrinally foreclosed merits decisions identically
• The asylum framework: well-founded fear, protected grounds, state action or state failure, internal relocation, and corroborating evidence
• Why "particular social group" carries most Central American asylum claims, and why the doctrine has been actively contested for forty years
• The four flips in eleven years on social-group doctrine for survivors of domestic violence — and why one official's signature can do what a five-Justice majority would have to do at the Supreme Court
• Matter of S-S-F-M- (September 2025) and the practical effect of AG certification on cases filed years before the rule changed
• Why immigration judges are not ALJs, and what the MSPB's March 2026 ruling about IJs as inferior officers means for adverse-action protections
• The February 2025 DOJ position that ALJ removal protections shouldn't be defended against constitutional challenges, and how the gap between IJs and ALJs is collapsing
• How case-completion quotas — the 2018 EOIR metrics required 700 cases per year for a satisfactory rating — interact with the structural pressure to issue careful decisions
• Why immigration is fully adversarial, and what that means for unrepresented respondents facing a DHS attorney through an interpreter
• Why there is no right to appointed counsel in immigration removal — and how unrepresented denial rates can reach 90% for detained respondents
• The bond hearing as the inflection point: ten minutes, typically without counsel, that decides whether the merits case is prepared from inside detention or outside
• How detention reshapes the record itself: country-conditions evidence often can't be gathered from a rural facility with sporadic legal visits and monitored phone calls
• The interpreter problem: how translation differences create apparent inconsistencies that DHS attorneys use to build credibility cases respondents can't evaluate
• Why Goldberg v. Kelly requires more process for welfare termination than the Constitution requires for asylum
• Plenary power doctrine from the Chinese Exclusion Case (1889) and why it remains the starting point despite over a century of erosion at the edges
• DHS v. Thuraissigiam (2020) and the constitutional line between people inside the country with established ties and people treated as if they were still outside it
• The January 2025 executive order expanding expedited removal to anyone unable to prove two years of physical presence, and the D.C. Circuit's signal that some line still exists
• Why the rule-of-law critique doesn't depend on disagreeing with the underlying policy choices Congress made about immigration

Full Rough Transcripts

Part 1
Gwen: Hello, and 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. I'm Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I'm Marc Roark. I'm the dean of the College of Law.

Gwen: 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.

Marc: 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 this series.

Gwen: Marc, this was supposed to be the last episode of the season, but I think we'll need to break it into two.

Marc: You can't just put a good thing down.

Gwen: So this is part one. Let's say in early 2022, you have two asylum seekers crossing the southern border six months apart. We'll call them Rosa and Elena. Within their first month in the system, they get routed differently. One goes to a dedicated docket. The other goes to the regular docket. And that single routing decision — that's made by a clerk neither one of them has ever met — is now the reason one of them was heard in eight months and the other is now going to be waiting until 2028.

Marc: So the same statute, the same courthouse, but six years of difference based on which docket somebody dropped them into.

Gwen: Yes. That's the immigration court version of the problem we've been tracing all season — how much time the person has, what doctrine applies, which judge hears the case, and how much pressure the judge is under.

Marc: But today is immigration court.

Gwen: Right. Today is the machinery, the volume, how asylum works, the Attorney General certification, immigration judges, and judge-to-judge variation. And then next time, we will be turning to the person standing inside the machinery — the impact of representation and detention, expedited removal, and the very limited constitutional floor that applies. We have a lot to cover, so let's get started. All right. Rosa's the first one. She arrives in early 2022. She's fleeing gang violence in Honduras. They're both going to be fleeing gang violence in Honduras. So they both pass a credible fear interview. And for Rosa, DHS files a notice to appear, and she gets a master calendar hearing date in 2026. And that's not the merits one. That's just an initial hearing. The merits hearing, the one that decides whether she gets asylum, is scheduled for 2028.

Marc: And the judge has to assess her fear of return as of when?

Gwen: It is as of the hearing date. Asylum law is forward-looking. The question isn't whether she had a well-founded fear in 2022 when she came here. The question is whether she'd have a well-founded fear if she were removed the day the hearing is happening. It's the country conditions at the moment of decision. That's what matters.

Marc: Okay, so in some ways, the delay could help her. If conditions in Honduras have gotten worse, that's evidence supporting her present fear.

Gwen: It could cut either way. If she can show past persecution in 2022, she gets a regulatory presumption of well-grounded fear going forward, and the government has to rebut that with evidence of changed conditions. But the longer the delay, the more rebuttal material the government has. State Department country reports from 2023, '24, '25, '26 — each one is potential ammunition. If the gang she fled has been suppressed or fractured or moved on, that's the government's affirmative argument that she no longer has a well-founded fear.

Marc: So the delay doesn't make her old fear stale. It just shifts the evidentiary fight from what happened in Honduras in 2022 to what's happening now.

Gwen: Right. And there's also a separate problem, which is evidence degradation. So witnesses to this 2022 persecution may be dead or unreachable by that point. Medical records of the assault might have been destroyed. Her own memory for specific dates is going to be now six years older. None of that's doctrine. That's just the reality of what happens to evidence over time. And on top of that, she'll have been living for six years in the U.S., potentially with a work permit. She might have had kids who were born here. She's presumably formed community ties. Removal six years after arrival doesn't undo six years of having lived here.

Marc: Okay. Well, what about Elena?

Gwen: All right. So Elena crossed six months after Rosa. She got assigned to an expedited docket, and her merits hearing was just eight months out. That gave her eight months to find a lawyer, document her fear, gather evidence from the country she fled, build a case. And grant rates on expedited dockets run substantially below the regular docket.

Marc: So the variation is not just in the outcomes. It's how much time the system gives you to prepare.

Gwen: Right. Last time we talked about Social Security disability — the largest adjudication system in the federal government, two and a half million applications a year. Today is the second part, immigration. It's a slightly smaller volume than SSA and has a different framework. But most of the stuff we talked about before shows up here again, just stronger.

Marc: Stronger how?

Gwen: The variation is wider. The independence protections for the adjudicator are weaker. The doctrinal rules shift more aggressively, more often, and through a more direct mechanism. And the consequences are different in kind — not denial of benefits, but removal from the country.

Marc: Let's do this by the numbers, because I don't think people understand the scale of this issue.

Gwen: All right. The pending caseload at immigration courts is currently around 3.2 million cases. That's not the annual, so we're not directly comparing it to Social Security. That's just what's pending. That's down from a peak of 3.7 million in 2024, but it's still virtually the highest in the system's history since we started coming down from that peak. And in comparison, in 2022, it was 1.9 million. So we're still way up. These aren't all asylum cases, but of this 3.2 million, 2.3 million of them are asylum cases. They're like 70% of the docket.

Marc: And what about the immigration judges?

Gwen: We currently have about 700. When Trump took office, that was more like 735. But they got down to around 600 since so many people left or were asked to leave or just not there for some reason. So the backlog has come down, but so has the decision-making capacity. If you divide even the 2.3 million pending asylum cases by 700 judges, you get about 3,200 cases per judge. And new ones keep coming.

Marc: So when you compare it to Social Security, which has about 1,600 ALJs handling about 2.5 million new applications a year.

Gwen: Right. Immigration has way fewer judges handling cases of a similar complexity. And asylum cases in particular are really fact-intensive, more so than the average disability case. The credibility determinations turn on testimony about events in another country. We need evidence of the country conditions, expert testimony, interpreters. A merits hearing can take three to four hours if it's done properly. Not every Social Security case also has to be seen by an ALJ — some of them end before that point.

Marc: And the immigration judge has 3,200 cases that are waiting for him.

Gwen: Right. So this creates the kind of structural pressure we talked about a couple episodes ago. This volume isn't neutral. When you have that many cases per judge, you can't conduct each one at the pace the stakes require. Something has to give. And what gives is some combination of time per case, depth of factual development, quality of credibility assessment, and access to representation.

Marc: And when leadership wants to reduce the backlog —

Gwen: They have ways to make it happen. So EOIR completed more than 767,000 cases in 2025. That was the highest single-year total in the agency's history. And the pending caseload dropped by about 447,000 between January and September. So these were agency productivity records.

Marc: And you're going to tell me that the productivity is something different than what it sounds like.

Gwen: Right. They're really different kinds of cleared cases. First, we can have procedural. These are terminations or dismissals, in absentia removals if the respondents don't even appear. Those cases exit the system without an individualized merits decision at all.

Marc: Okay, so it's not adjudication. It's just simply the case is over.

Gwen: Yeah. These respondents never get a merits hearing. Maybe they were detained and transferred and didn't get notice. Maybe DHS moved them to expedited removal. Maybe the case got dismissed because the government decided not to pursue it. Regardless, we have no judge spending time weighing the evidence.

Marc: Okay. What's the second mechanism?

Gwen: We can accelerate it with these rocket dockets. We still have a merits hearing, but everything is on a compressed timeline. Eight months from notice to appear to a final hearing in some cases, or even less. This is running under the same statute, same doctrine, but you will probably have a thinner record going in.

Marc: And the third mechanism?

Gwen: All right. We can just change the laws that are handling these. When we were talking about appeals, about how the attorney general can certify and decide a case — and they can do that to narrow what counts as a viable claim. Those cases can still get a full merits hearing. The applicant can testify. The judge applies the law. The decision is on the merits. But the doctrinal rule the judge is applying has been rewritten to make a category of cases non-viable. So someone could lose on the merits here on the same facts that they might have won on 18 months earlier.

Marc: Okay. Do you have a concrete example to illustrate this?

Gwen: All right. So let's talk Matter of S-S-F-M from September 2025. Here, the Attorney General certified a case, overruled the Biden-Garland era framework, and reinstated a rule from the Sessions era. There were no statutes that had changed, no regulation that went through notice and comment, but categories of claims that were viable when some applicants filed stopped being viable when the certification came down.

Marc: EOIR press release counts all three of those — the procedural exits, the rocket docket merits decisions, the doctrinally foreclosed merits decisions — all of those as completions.

Gwen: Right. The agency's own metrics don't distinguish. From the dashboard, 767,000 cases got cleared. The completions aren't equivalent. The numerical reduction in the backlog is real, but what got reduced in some categories wasn't just delay. For some respondents, it was the availability of the merits decision under the doctrine that existed when they filed.

Marc: Okay. In the last episode, you walked us through the SSA's five-step sequential evaluation. Can you do the same thing in the immigration context?

Gwen: Sure. All right. We don't have a numbered checklist here like we would with disability, but every asylum case is running through the same basic framework. The applicant has to prove a few different elements. First, that they have a genuine and well-founded fear of persecution. This means serious harm or threats if they return. Second, that persecution has to be on account of one of five protected grounds — their race, religion, nationality, political opinion, or membership in what the statute calls a particular social group. Third, the threat has to come from the government or from people the government cannot or will not control. Fourth, the court looks at whether the person could be safely relocated within their own country. So maybe they're not safe in that city, but they could be safe in a different city. And finally, all of this needs to be supported with credible testimony and corroborating evidence.

Marc: Okay, let's put this to Rosa.

Gwen: All right. Rosa's fleeing gang violence in Honduras. The gang has extorted her family. They murdered her brother after he refused to pay, and they've threatened her directly. So on that first element — whether she has a well-founded fear — she has a clear case. People in her position have been killed. The threat is documented.

Marc: What's then the problem?

Gwen: It hits when we get to that second element, that this needs to be on account of her race, religion, nationality, political opinion. None of those apply. So her case, like most of the Central American asylum cases, has to go through membership in a particular social group. And that is the single most contested doctrinal category in immigration law.

Marc: So why is that so contested?

Gwen: Okay, well, what does particular social group mean?

Marc: Particular means specific, identifiable. Social means defined by some relationship to other people, not biology or geography alone. And group is just a set of people with something in common. So a particular social group is some identifiable set of people defined by a social rather than a purely individual characteristic. That's broad enough to cover almost anything. I mean, women in a particular village, former gang members, children of a certain family, people who testified against a cartel.

Gwen: That's the problem the doctrine has been wrestling with for 40 years. If particular social group means everything you just listed, it swallows the rest of the statute. Asylum becomes available to almost anyone who can describe their persecutors in social terms. So the doctrine has narrowed it.

Marc: How so?

Gwen: The phrase itself isn't defined in the statute, but the Board of Immigration Appeals, the Attorney General, and the federal courts have all been interpreting it. And these interpretations have shifted back and forth. The current frame is that a protected social group has to be composed of members who share a common, immutable characteristic. It has to be defined with particularity, and it has to be socially distinct within the society in question.

Marc: So Rosa's lawyer has to construct a social group that fits those three requirements.

Gwen: Right. Needs to construct it and do it as narrowly as possible. Rosa can't just be a member of "Hondurans Afraid of Gangs." That's not socially distinct. Her lawyer might try something like — narrow, particular, immutable, socially distinct.

Marc: And whether that group is cognizable.

Gwen: Yeah, that's been litigated for a long time. And the answer keeps changing depending on who's in the Attorney General's office. We've had four reversals in 11 years on what the social group doctrine for survivors of domestic violence should be. Same statute the entire time.

Marc: And what that actually changes between those readings — on the same statutory words, what's a Sessions reading versus a Garland reading, for example?

Gwen: There's two different ways these change. First, the level of generality the group can be described at. The Sessions reading, the stricter one, insists on extremely narrow groups that aren't defined by the persecution itself. So women who suffer domestic violence can't be a social group because the persecution itself is doing the defining. A Garland reading allows more room. The group exists in society and the persecution targets it because of what it is. Women who've suffered domestic violence could be a social group then. Second, where this violence needs to come from. Can it be gangs, family members, husbands? Is that going to count as persecution, or is only specific state violence going to be? A Sessions reading is pushing more towards that state-only. A Garland reading more easily lets private violence count if the state won't protect the individual.

Marc: And those two readings produce opposite results on the same facts.

Gwen: Yes. Rosa's case in 2028 will turn on which reading is in effect when she's heard.

Marc: And whoever's AG when she's heard is the one whose view of that rule then controls.

Gwen: Right. So under the current version, it was decided on facts almost identical to Rosa's. The respondent in S-S-F-M was a Honduran woman pressing social gang theories on the same types of facts that Rosa's going to need in 2028. And the decision in S-S-F-M will foreclose those theories. Her lawyer in 2028 is going to be arguing a social group that we already have an Attorney General decision says doesn't qualify, on facts that the Attorney General has basically already addressed.

Marc: Okay, hold on. Courts reverse themselves too, though. You know, Loper Bright overruled Chevron. Dobbs overruled Roe. You're expecting Humphrey's Executor to be overturned later this month. This isn't only an agency phenomenon.

Gwen: Thanks so much for the reminder. And you're right, it isn't. Courts do reverse. But the thing that's different here isn't whether the doctrine flips, it's who flips it and how fast. Roe lasted 49 years before it was overturned. Chevron was 40 years. This line has flipped four times in 11 years. And every flip is a single official acting alone, picking a case, writing the decision, and binding every immigration judge in the country immediately.

Marc: So there's no five-vote majority, no concurrences, no dissents.

Gwen: Right. We've got one signature. And stare decisis, as the courts apply it, is a self-imposed constraint that asks for some institutional consensus before overruling something. As we've established, it's not perfectly observed — a little less so recently than it used to be — but it still does exist as a concept. The Attorney General certifications don't have that same constraint. The doctrine flips on the timeline of the official, not the timeline of the institution.

Marc: And this isn't just an anomaly.

Gwen: Right. We see the same thing for family-based social groups. There's a decision called Matter of L-E-A, which has been certified and recertified back and forth across administrations. We get shifts on credible fear standards. We get shifts on what counts as persecution versus discrimination. The substantive rules governing whether someone qualifies aren't stable. They're actively contested, and the contest gets resolved case by case through AG certification.

Marc: You're saying immigration judge and not ALJ. Why?

Gwen: All right. Immigration judges are Department of Justice employees. They are not ALJs. They're appointed by the Attorney General. Because they're not ALJs, they don't have the protections under the Administrative Procedure Act that the ALJs do. There's no removal protection. There's no separation of function protection there.

Marc: If they don't have those things, what kind of protections do they have?

Gwen: Until March of this year, the answer was they at least had civil service protections. IJs, which is what we generally call these immigration judges, are in the excepted service. They're covered by 5 U.S.C. § 7513, which is the ordinary adverse action framework that applies to every other general federal employee. A proposed removal had to go through pre-termination procedures. The IJ could appeal to the Merit System Protection Board. The agency had to show cause for why they were doing it. This wasn't the heightened ALJ standard. The Merit System Protection Board case law had long held that for ALJs, you can't be removed based on how you've decided a case. And that was never the same for IJs. They could be. But there was still some sort of ordinary civil service protection framework. And AGs had historically pressured the system through assignment, through certification, and through selective firing of judges when they could find cause. The formal protections were at least a partial protection.

Marc: What changed, though, in March?

Gwen: The MSPB decided a case where two immigration judges had been terminated by EOIR on February 14th. So awesome Valentine's Day present for them. That was same-day notice. There was no pre-termination procedures, no processes. They appealed to the Merit System Protection Board. And initially it was heard by an administrative judge who ordered them reinstated, saying that they were entitled to those sort of civil service protections that the agency hadn't provided them. But then the full board took it for review, reversed and dismissed the appeal. Here's what they said.

Marc [reading]: We hold that the Attorney General's exercise of constitutional Article II removal authority in relation to these appellants — whom we determine, based on their duties, are inferior officers who exercise significant adjudicative and policymaking authorities on behalf of the United States — abrogates otherwise-applicable statutory removal protections and thus deprives the Board of jurisdiction.

Gwen: It's pretty shitty.

Marc: The protections existed on paper. The MSPB held the Constitution prevents them from being applied to IJs.

Gwen: Right. So this is building off of these cases we've had on inferior officers and presidential removal for a while. The board said that IJs are inferior officers and that they exercise too much policymaking authority to fit within an exemption that permitted removal restrictions on certain kinds of inferior officers. So what that means is that they are now going to be considered at-will employees of the Attorney General. This is the same effect as if they'd never had any protection.

Marc: All right. But this is one MSPB decision. Is this where the law actually is, or is this where the MSPB happens to think the law is?

Gwen: It's kind of both. Circuit courts have already found IJs to be inferior officers. That's the predicate move that the MSPB is relying on. And that can be appealed. But as of late May 2026, the operative law for adverse actions against IJs is that the MSPB has no jurisdiction over them. Whether that survives is a different question, but this is the Attorney General's practical authority. It's been exercised, and these people do not have a job.

Marc: What does an at-will IJ actually do differently than a protected IJ, then?

Gwen: So these differences are going to show up in marginal cases. If we have an IJ who's leaning towards granting asylum on a borderline social group theory, but she knows she can be fired tomorrow with zero notice and no opportunity to respond — there's no formal mechanism through which the Attorney General fires her because of the grant. There doesn't have to be. The grant is in the docket. The firing happens. And the next IJ in the courtroom watches and adjusts.

Marc: So the doctrinal pressure doesn't have to be applied case by case. The structural fact that she can be removed tomorrow is the pressure.

Gwen: And that feels like a chilling effect that courts have been describing in the removal power of cases for hundreds of years. So it is exactly the reason that the protections existed. But there's also another parallel move with the ALJs. In February 2025, the Department of Justice filed a notice in pending litigation saying that it would no longer defend those ALJ protections against constitutional challenges.

Marc: So the Justice Department was telling a court it won't defend the statute on the books.

Gwen: Yes. If we put these together, IJs have already lost their protection through this MSPB decision. The ALJs are losing theirs because the Department of Justice won't defend it anymore. And so the executive branch's position across the board is that tenure protections for adjudicators are unconstitutional.

Marc: And the gap between IJs and ALJs that used to matter —

Gwen: Is potentially already gone, at least if this is going before the MSPB. The only question is what the federal courts are going to do with it. And on top of all this, the performance evaluations for IJs can be — and have been — tied to case completion numbers.

Marc: A couple of episodes ago, you mentioned the 2018 EOIR performance metrics, though.

Gwen: Right. So those were temporary. They're not in effect now. But at the time, they were trying to make them decide 700 cases a year to get a satisfactory rating. And if they had fewer than 560, they were officially unsatisfactory. Those quotas were explicit. They applied to IJs personally, and they made case completion a primary factor in performance evaluations. The quotas were modified after litigation, but the underlying pressure towards completion has stayed. And it's taking different explicit forms in different administrations.

Marc: And from the IJ's perspective, how do those two pressures then interact?

Gwen: They're simultaneously expected to be producing careful, legally defensible decisions on cases where the stakes are enormous. They might be life or death in some cases. And to complete enough of them to meet performance expectations. And like I said earlier, a careful asylum hearing takes hours. A less careful one takes less time. So if you're doing three-hour hearings for everything, you're not going to meet your numbers. If you're doing one-hour hearings, you're going to miss a lot of factual development. You might miss credibility nuances. You might miss things on federal review that could be sent back for further processing. But you're at least going to get through more of them.

Marc: So these incentives don't line up.

Gwen: Right. And the IJ has to navigate them with essentially no institutional buffer. Social Security ALJs navigate similar pressures. And they used to have stronger removal protections. There was a union that kept litigating these issues. And a case mix where credibility stakes, while real — it really does matter if people get Social Security disability — are not life or death in the immediate sense that asylum cases can be. We've also seen overall denial rates increase dramatically. In February 2026, the denial rate had climbed to about 80%, up from about 50% in 2023. That has already shifted dramatically against granting it in the last year.

Marc: Let's go back to Rosa, though. 2028 hearing, random immigration judge draw, S-S-F-M is the rule.

Gwen: Okay, so she walks into a courtroom in 2028 to argue a social group theory that the Attorney General has already foreclosed on facts similar to hers. The doctrinal ceiling on her particular theory has been lowered. If the judge denies it, she can appeal to the BIA, which is going to be bound by this Attorney General decision. And she may eventually get to the Ninth Circuit or the Fifth, depending on the venue she's in. But she's litigating on the agency's terms, under the agency's rule, with six-year-old evidence about a country she fled six years ago.

Marc: So the same statute her lawyer would have argued in 2022 created a different rule with different country conditions and a different judge.

Gwen: Yes, that's the machinery. And we will stop here. Next time, we'll move from the machinery to the person standing inside it. So we're going to look at Elena, who had just eight months to prepare in a Louisiana detention facility, what that case looks like, why representation matters so much — potentially more than anything else in the federal system — and why the Constitution doesn't fix any of it.

Marc: So that does it for today's episode on 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.

Part 2

Gwen: Hello, and 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. I'm Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I'm Marc Roark. I'm the dean of the College of Law.

Gwen: 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.

Marc: 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 this series.

Gwen: All right, let's pick up where we were when we were talking about immigration. Picture a visitation room in a private detention facility in rural Louisiana. We've got cinderblock walls, fluorescent lights, two plastic chairs bolted to the floor on either side of a metal table. We have Elena on one side and a lawyer who drove three hours from New Orleans on the other side. They have 90 minutes. Elena has eight months until her merits hearing — that's the hearing that decides whether she gets asylum or is going to be sent back to Honduras. In those 90 minutes, the lawyer needs to learn her story, identify the social group theory, figure out what corroborating evidence exists and where, and explain to her what's about to happen. And the lawyer, this is a long drive, probably won't be coming back for at least six weeks.

Marc: And the evidence she needs to prove her specific case, that's all back in Honduras.

Gwen: Right. So there's going to be some stuff produced by our government that's available to everybody. But what won't be available is the stuff that was specific to her — the neighbor who saw the assault, the death certificate, the medical records from a clinic in town, the threats that came in over the phone. The evidence is in a country she fled, in a town she potentially can't safely call into, and would have to be gathered by family members who themselves might be at risk just from gathering it. None of that's in the visitation room.

Marc: Okay, so last time we walked through the machinery — the backlog, the asylum framework, the AG certification, Jackler, and at-will immigration judges.

Gwen: Yeah. So today we're looking more at one person inside that machinery, because judge assignment definitely matters. It's a huge factor. But there are a couple of other huge ones. One is whether you have a lawyer, and the other one is whether you're in detention while you're trying to put your case together.

Marc: Okay, so two more — representation and then detention.

Gwen: Right. So on both of these, immigration is harder than anywhere else in the federal system. Representation drives outcomes everywhere in adjudication. We already talked about that with Social Security, but there are a couple important differences here.

Marc: Like what?

Gwen: Represented asylum seekers win at several times the rates of unrepresented ones in non-detained cases. And if they're detained, which we're going to be talking about soon, that representation rate matters even more. Unrepresented denial rate can be 90 percent.

Marc: So several times the rate — we're calling that the same adjudication system?

Gwen: Yeah. The doctrine doesn't care whether you have a lawyer, but the outcome can care enormously.

Marc: So the type of adjudication?

Gwen: This was comparing immigration hearings to Social Security hearings. Remember, Social Security hearings, we had an inquisitorial judge model where the judge was supposed to be helping develop the facts. Immigration hearings are adversarial. So there is a DHS attorney across the room — a government lawyer whose job is to present the case for removal, to cross-examine the respondent, and to argue against asylum. So in Social Security, there's no opposing counsel. Again, the judge is supposed to be helping develop the record. But in immigration, an unrepresented immigrant doesn't just lack a lawyer. They're actively facing a lawyer.

Marc: And often they're not going to speak English.

Gwen: Right. And then things get even worse because now they'll be answering questions through an interpreter, and they'll be doing it about traumatic events while government lawyers are trying to find inconsistencies in their story. And that translator alone can introduce problems. So the witness might say one word in Spanish and the interpreter might say a slightly different variation that might be different than what a previous interpreter said. And the DHS attorney can pull the credible fear transcript and accuse them of changing the facts because now there's a contradiction in the record. So the respondent doesn't know what happened. And the judge has to decide whether that inconsistency is because of their credibility or because of translation issues.

Marc: And with a lawyer in the room representing the immigrant.

Gwen: So if we have a lawyer in there doing this, the lawyer can object. The lawyer can ask the interpreter to clarify. They know what was in the original transcript. They can help make sure that if they're really trying to say the same thing, that that's clear to everybody in the room. They can redirect on the alleged inconsistency, and they can help put the credible fear transcript in context. Without a lawyer, the respondent is sitting next to an interpreter that they can't evaluate, listening to questions they didn't anticipate, with a government attorney building a credibility case in front of a judge who has 3,200 cases waiting. That's the room we're in.

Marc: In a criminal courtroom, somebody would have been appointed for her by now.

Gwen: Right. But unfortunately for her, in immigration cases, there's no right to appointed counsel. So the Sixth Amendment right applies in criminal cases. Immigration removal is considered a civil procedure. Respondents have what the statute calls a privilege of counsel at no expense to the government. They can hire a lawyer or they can try and find a pro bono one, but the government will not be providing one. If you can't afford one and the pro bono organizations in your area are full, you're going to be representing yourself.

Marc: Against a trained government attorney, through an interpreter, in front of a judge whose grant rate may be 4%.

Gwen: Right. And again, the stakes of losing here aren't loss of a benefit. They are removal to the country that this person originally fled. That's the line that separates immigration from every other adjudication system we've covered. In disability, losing means not getting benefits. That's devastating. It really is. But the claimant is still staying here. In immigration asylum cases, losing means going back to the country you're saying you fled because you had a well-founded fear of persecution there. The risk that your asylum claim was actually correct and you will be in major danger if you return is the consequence of getting the answer wrong here.

Marc: So the premise of an asylum claim is that the country is dangerous to this person. The consequence of denial is returning them to that country. So we're building an adjudication system whose error costs in one direction are exposure to the persecution we said we don't want to expose people to.

Gwen: Yes. So that's the structure. And the Supreme Court has said it's constitutional.

Marc: It would seem like those are pretty high stakes, though. I mean, life and death, sometimes literally, should trigger more procedural protection, not less.

Gwen: That could be the intuition, but the doctrine very clearly cuts the other way. The Constitution's procedural floor for immigration cases is lower than the floor for someone losing Social Security benefits.

Marc: Wow. Right. Goldberg v. Kelly says you can't terminate welfare benefits without a pre-termination hearing. We've talked about it three or four times this season — that welfare, cash assistance, the court treats it as serious enough to demand a real hearing with confrontation rights before the government takes it away. And asylum, where the alternative is removal to a country we've conceded may persecute the person, gets less.

Gwen: Yeah, less and not by a little. Two reasons for this. They're both still good law. The first is plenary power. So if we go back to the Chinese Exclusion Case in 1889, the court held that Congress's authority over who may enter the country is something close to absolute. It's largely beyond the kind of constitutional scrutiny that would apply to almost any other federal action affecting someone this seriously. And the court is continuing to chip away at this over the decades, but it's never overruled the foundational case. That doctrine is still the starting point.

Marc: So what's the second?

Gwen: All right. This is the line between people inside the country with established ties and people seeking entry. Someone who's been here for years, who's working, raising kids, gets more due process protection than someone who's apprehended at the border. There is a recent landmark case. It was in 2020. So Thuraissigiam — the respondent crossed the southern border. They were apprehended within 25 yards. They sought asylum and they were placed in expedited removal. The court said that there's essentially no due process right to judicial review beyond what the statute provided.

Marc: 25 yards inside the country, but the Constitution treats him as if he's still outside of it.

Gwen: Functionally, yes. So the court's treating recent unlawful entrants seeking initial admission as if they were standing at the border. Whatever process Congress gave them by statute is the process they get. Here's the key part.

Marc [reading]: As applied in this case, the statute, which limits the habeas review obtainable by a noncitizen detained for expedited removal, does not violate the suspension or due process clauses.

Marc: So a statute restricting habeas review for someone 25 yards inside the border doesn't violate due process. That's the holding.

Gwen: Right. So that's what it meant in 2020. And the administration is testing how far that distinction can stretch.

Marc: Stretch how?

Gwen: So January 2025, there was an executive order that directed DHS to expand expedited removal to anyone, anywhere in the United States, who can't prove they've been in the country for more than two years. Before that, the agency had limited expedited removal to people who were apprehended within 100 miles of the border — which is still way more than 25 yards, but way less than the whole country — and within 14 days of entry. So this 2025 expansion took it to anywhere in the country and stretched the entry window from two weeks to two years.

Marc: So Thuraissigiam's logic — 25 yards from the border, treated as if standing outside the country — is being applied to someone picked up in a workplace in Ohio who has been here for 23 months.

Gwen: Right, assuming they're undocumented. When this was issued, the D.C. District Court enjoined it, and the D.C. Circuit declined to stay the injunction. The panel said the government wasn't likely to succeed on the due process question.

Marc: And the underlying question is exactly the one we just walked through. How far inside the country does Thuraissigiam's "essentially no due process protection" rule reach?

Gwen: Right. That's the question. And for now, the D.C. Circuit has said not all the way. There is some line, and someone who's been physically present in the United States for months or even years, who's been building a life, is on the protected side of it, even if they entered unlawfully.

Marc: So there's at least some procedural floor still, even if it moves opposite to the stakes. Higher stakes create a thinner floor. But that's an inversion of what most people would assume the Constitution does.

Gwen: Right. That's potentially counterintuitive. And neither piece is a recent shift. So the plenary power goes back to 1889. Goldberg was decided in 1970. The courts had decades to try and bring these two lines of cases into agreement, and it hasn't.

Marc: Okay, but plenary power isn't just doctrine. It tracks a serious view that controlling entry is a sovereign function and that people who arrive without authorization aren't entitled to the same procedural package a citizen gets. Someone who thinks no one should be allowed in without going through the legal process listens to this episode and says, fine, the system is harsh. That's the design. Asylum is generous on the margin. The Constitution lets Congress draw the line where it draws it. What do you think about that?

Gwen: That view is definitely real and it is held in good faith by a lot of people, and potentially has constitutional support under what the court said. That's basically the whole idea of plenary power. You don't have to think the doctrine is wrong to be upset by what's going on. The question we're looking at is narrower. It's given the statute that Congress wrote — which does grant asylum, which sets up the adjudication system, which promises individualized hearings — is this system actually delivering what the statute says it should? You can think the statute should be narrower and still want the adjudication under the existing statute to be accurate. Strict or generous, the law is supposed to apply the same way to the same facts. That's not a policy claim. That's a rule of law claim.

Marc: So the critique works regardless of where you stand on how many people should be admitted.

Gwen: Right. If you want fewer grants, you want the denials to be the right denials. If you want more people in, you still want the people admitted to be the right people. Either way, you want the adjudication to track the law. That's the thing the data says isn't happening reliably.

Gwen: All right. So let's come back to Elena. She was picked up at the border. She was placed in expedited removal after she passed her credible fear interview, and she was transferred to this detention center in rural Louisiana. Her eight months in detention run inside that facility, which means she is definitely not preparing her case from her apartment.

Marc: And SSA disability claimants aren't detained while their cases are pending.

Gwen: Right. They're not detained, period. Immigration respondents often are. And that's a feature of the system here that has no analog anywhere else in administrative adjudication.

Marc: How long are they potentially incarcerated for?

Gwen: For asylum cases, it could be months, if not a year or more. Sometimes they're going to be in multiple different facilities. They might be picked up in one state, transferred to a facility in another, occasionally to a third. This was true before Trump started doing funny stuff with immigration too — this has been the way the system works. They might have family in Houston, a lawyer in New Orleans, and the detainee, best case scenario if their lawyer's in New Orleans, is in Jena, Louisiana. None of that's unusual.

Marc: And before the merits hearing, there's a separate proceeding about whether they can stay there.

Gwen: Right. So this is the bond hearing, which can have a huge effect on how the merits hearing will go, but doesn't get a ton of attention. So Elena's bond hearing would have happened by video, like the third week she's in custody. The IJ is in an office in Texas. The DHS attorney is on another video feed. And she's in a small room in the facility with a chair bolted to the floor. She has no lawyer at the bond hearing. She probably hasn't been there long enough to get one. And the whole proceeding can take like 10 minutes.

Marc: So 10 minutes to decide whether she prepares the merits case from the inside or the outside.

Gwen: Right. And this itself is an IJ proceeding. So we're going to have the same judge pool, the same variation, and the same constraints. What the judge is deciding isn't the asylum claim. It's whether the respondent is a flight risk or a danger and what bond amount, if any, would secure release. So the factors are things like community ties in the U.S., criminal history, prior immigration violations, sponsors who can house her. Elena here has been here for three weeks and she might have a cousin in Houston that she's spoken to twice. At this point, she potentially doesn't have any documents to put in front of the judge proving that the cousin exists.

Marc: So a respondent who wins bond prepares for the merits hearing from the outside. A respondent who loses bond or can't post it —

Gwen: They're going to be preparing from inside. These two are wildly different cases by the time they get to the merits hearing months later. The respondent on the outside can meet with the lawyer in the lawyer's office. They can gather documents with family. They can contact witnesses overseas through free methods like video chat. They can sit through preparation sessions, while somebody who's doing it on the inside is probably in a rural location with a few sporadic legal visits, trying to mail documents and communication through monitored phone calls. Same statute, same asylum framework, but a completely different ability to present it.

Marc: And there's an empirical handle on this as well.

Gwen: A significant one. Detained respondents are represented at a rate well below half of non-detained respondents. And among the detained respondents, the gap between represented and unrepresented is wider than any other population that people have looked at — by an order of magnitude in some cases. So detention compounds every variable. You're less likely to have representation. You're less likely to be able to develop good evidence. And on this rocket docket system, you've got less time to develop it too. When the merits hearing happens, it's based on whatever you've managed to assemble by that time.

Marc: Okay, take Elena. Eight months on the rocket docket is brutal, but maybe workable from outside. But eight months from inside a Louisiana facility —

Gwen: Right. That's going to be something else entirely. And eight months passes the same way either way. And a judge isn't going to grant a continuance because a respondent is detained. That's not a basis for one. A detained Elena's clock is the same as a non-detained Elena's clock. But what she can do in those eight months — meet with a lawyer who can travel to her, get her family to ship medical records from Honduras, find an expert on country conditions — this can potentially collapse. The rocket docket plus detention is the worst combination the system produces. Fast hearings based on thin records, and the thinness isn't necessarily because the person didn't try.

Marc: And the kind of evidence asylum requires — what's happening in the home country right now — is the kind of evidence that's hardest to gather from inside a detention facility.

Gwen: Right. So the State Department has country reports that are public. Her lawyer can pull those. But the case-specific evidence — the affidavits from people who witnessed the persecution, documentation of the threats that might have targeted her family, expert testimony about whether her social group theory matches actual on-the-ground conditions — that's evidence that can depend on somebody outside the facility doing the work. If she has a lawyer, maybe there's someone who could do that. If she's pro se, the evidence often doesn't make it into the record at all. And then the judge, who is required to consider current country conditions, decides on a record without the current country conditions that would have supported her claim.

Marc: Okay, so the legal standard says current conditions control. The detention reality says the respondent may not be able to put those conditions in front of a judge.

Gwen: Right. The judge is just going to be deciding based on the record the parties submit. Detention does not just change how the case feels — it changes what evidence exists in the case. So two respondents with identical claims, if one's detained and one's not, can arrive at the merits hearing with materially different records. That's structural variation. That's not individual failure.

Marc: Okay, let's put the IJ on the other side of that. The judge in that courtroom is looking at a detained, unrepresented respondent making a record on the fly through an interpreter, against a DHS attorney building a credibility case. The judge has 3,200 other cases waiting. What does that hearing actually look like from the bench?

Gwen: Some of the variation we can see in judge claims is because some IJs will do some factual development on their own. They might ask the kinds of questions that a lawyer for the immigrant would have asked. They might leave the record open for additional submissions, or push the DHS attorney on whether something is actually in dispute. But other IJs treat the adversarial system as though it is strictly binding. If the respondent doesn't raise it, it isn't raised. If the corroborating evidence isn't in the record, it isn't in the record. Both of these theories are defensible, but they produce different outcomes. So, again, that helps explain some of the variation in judges, although not all of it.

Marc: So go back to Elena in the visitation room. 90 minutes, a lawyer who drove three hours, evidence is in Honduras. That's the eight-month version of the case.

Gwen: Right. If she's pro se, she's not going to be in a visitation room. She'll be trying to work on a tablet in a common area, or a phone in a booth with a list of legal aid organizations she can call and voicemail she can leave that may or may not be returned. And the docket clock is running.

Marc: So the structure we've been describing — how did this become the system?

Gwen: Well, incrementally. Immigration adjudication has never been housed in an independent tribunal. Since the Executive Office for Immigration Review was created in 1983, immigration courts have been part of the Department of Justice. The AG has always had certification authority. But what's changed over time is how aggressively these tools are being used and how much political supervision is brought to bear on case outcomes.

Marc: And there's a longstanding proposal to then change that structure.

Gwen: Right. So people have tried to push for an independent court with independent judges who would have tenure protections, or at least some protections like magistrate judges do, who would have appeal to a similarly independent appellate body and further review by Article III courts. And this has been endorsed by the American Bar Association. The Federal Bar Association's Immigration Law Section has pushed it. There have been various bipartisan groups working on it, but no bill has ever passed.

Marc: Why not?

Gwen: Well, Congress is bad at acting on almost anything, but immigration is one of the worst areas. The last major immigration legislation was passed in 1996. So we've had 30 years. Everyone who studies the system agrees the structure is the problem, but the structure stayed the same.

Marc: So the system we've been describing is likely the system that will exist for the next 10 years.

Gwen: Right. Which means we'll continue to see the patterns we've been talking about on some of the highest stakes adjudication systems in the federal government, for as long as the political economy of structural change makes it unfeasible.

Marc: What about Rosa and Elena? Where are we leaving them?

Gwen: All right. So Rosa is at home in 2026. She's potentially working with a permit. She has a 2028 merits hearing on the docket. At that point, she'll be doing it based on six-year-old evidence. The rules could have changed to something that's less favorable. S-S-F-M — that's what we were talking about with her. That's the negative. That's the result that's going to hurt her. That's probably still going to be the law in 2028. But if we could contrast that to Elena — if she'd really crossed in 2022, she would have had her case decided in 2022 or early 2023. So there's a chance she would have been allowed to stay. She had a lawyer, so that would have helped. But given how quickly things were moving and the constraints she was facing, she probably would have been sent back.

Gwen: So on paper, this is a system designed to produce fair adjudication. Due process, appellate review, neutral decision makers. The paper version does not match the operating system. In immigration, the variation is wider, the independence is thinner, the stakes are higher, and the pressure on the adjudicator is more direct.

Marc: And the people caught in that have the least ability to affect it. They may not speak English. They may be detained. They may not have a lawyer. Their case may turn on a doctrine that changed after they filed, before a judge whose grant rate looks nothing like a judge down the hall.

Gwen: Right. The same pressures we've been talking about for a while at this point.

Marc: And the question we keep arriving at is the same. The agency is doing what it's doing. The doctrine has narrowed. The variation persists. What can anyone do about it from the outside?

Gwen: Yeah, this is where the question starts to shift. So once a system is producing outcomes this uneven, under pressure this direct, the next issue isn't what happens inside the agency — it's what courts do from the outside.

Marc: And I'm willing to bet that's less than people think.

Gwen: Excellent guess. So courts review based on the record the agency made and under standards that the agency generally benefits from. They don't reweigh credibility. They don't get a second look at country condition evidence that the respondent didn't put in front of the IJ because they were detained and couldn't get to it. By the time a case gets to the circuit court, the record is what it is. But judicial review is real and it matters. But it's also not the rescue mechanism people sometimes imagine.

Marc: Which is where we're headed next season.

Gwen: Yes. So next season is judicial review. What happens when this stuff finally goes to court? We'll start with the basics on justiciability. That really matters in admin cases. Most of the justiciability cases are admin cases. Before we get to the standards of review — and we'll be starting that mid-July. But before that, we will do an episode to officially acknowledge the death of Humphrey's Executor once it's announced. And that should come down sometime in June.

Marc: So that does it for today's episode on 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.

Related Guides

• Due Process, Habeas Corpus, and Immigration Right Now — The current-developments companion to this deep dive, focused on the live constitutional fights over expedited removal and habeas access.
• When the Agency Reviews Itself: How Internal Appeals Actually Work — Attorney General certification gets a fuller structural treatment here, including the asylum doctrine swings across administrations that drive Rosa's case.
• The Framework That Decides Disability — The Social Security counterpart to this deep dive. Comparing the two systems clarifies what immigration's adversarial structure, detention practices, and weaker constitutional floor actually trade away.

Listen Now

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What We Cover

• Why Congress delegates power to agencies in the first place — and why it has to
• What the nondelegation doctrine says and where it comes from in the Constitution
• The two 1935 cases that are the last time the Court actually struck down a law on nondelegation grounds
• Why the doctrine went dormant for nearly 90 years while agencies expanded dramatically
• The intelligible principle test — the current standard courts use, and why critics say it's toothless
• Which justices want to revive nondelegation as a hard limit on delegation, and what that would look like
• How the nondelegation doctrine connects to the major questions doctrine and the broader debate over executive power

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