Due Process Gone Wild Yet Again: The Immigration Courts

Attorney General Jeff Sessions has recently come under criticism for attempting to exercise what has been characterized as too much influence over the U.S. Immigration Court. A recent piece on CNN’s website describes Sessions as exerting a “unique authority over the immigration courts” and implies that actions he has taken to streamline immigration proceedings and ensure consistency in the decisions of the Immigration Court are somehow undermining due process for aliens. However, that is far from the case, and the bulk of the criticism leveled against the AG seems to be based on a misunderstanding of the role of immigration judges and how the immigration courts are supposed to work.

The U.S. Immigration Court isn’t a judicial court under Article III of the Constitution. It’s an administrative court. Administrative courts function as a check on actions by administrative agencies. They do so by providing a court-like environment where the parties affected by a government decision can present evidence of their claims to an administrative judge who is supposed to be an expert in the law and policies of the agency by whom he/she is employed. This ensures that executive branch decisions are correct and consistent and helps narrow any legal issues that might later need to be reviewed by a judicial court.

The function and powers of administrative judges differ significantly from those of their judicial branch counterparts. Administrative judges interpret and apply a specific set of laws but they don’t have the authority to declare those laws unconstitutional.  And their decisions are subject to review and confirmation by other executive branch officials within the agency that employs them. In addition, once their decisions have been reviewed internally, they’re subject to review by Article III judicial courts. This has always been the case. If anything, prior administrations have allowed the immigration courts too much free rein, enabling immigration judges to engage in judicial activism.

Accordingly, the mainstream media’s characterization of the Trump administration’s efforts to restore a measure of order to the troubled operations of the immigration courts are both misleading and inaccurate. Deportation hearings were never intended to be long, drawn-out affairs. They are a limited-purpose enquiry, designed to ensure that an alien receives basic, procedural due process before his removal, nothing more.

In a properly conducted proceeding, the government establishes alienage and removability, the alien is given an opportunity to try and demonstrate that he/she has some legitimate claim to remain in the U.S., and that’s all. There’s no need for anything resembling the Scopes Monkey Trial. And claims that the current administration’s desire to see immigration proceedings conducted in a manner consistent with the interests of the American people is somehow resulting in a “degradation of due process” are simply false.

About Author


Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.


  1. avatar

    My question: Why are illegal’s afforded the opportunity to use America’s Justice System at Our Expense ?
    These courtrooms are flooded handling cases regarding illegal’s or awaiting trial in American detention center’s at Our Expense ( tax-payer’s ).
    Illegal is illegal and has always been a crime in America. It’s not about their race or religion . They are bankrupting Our Country and Government Official’s aiding and abetting illegal criminal’s by allowing them to stay here.
    Fund The Wall, Build The Wall and Increase Border Patrol and ICE Agent’s to halt this invasion.

  2. avatar

    I don’t care for what reason, if they come over that border illegally and therefore are a criminal and have absolutely no rights ! These people go so far as to send their children by a person who gets paid to deliver them into this country ! They may be sold into prostitution or slavery or god knows what ! But again this is not a problem of the citizens of this country . There is a right wat and there is a wrong way, it is not fair that there are folks trying to come in the right way and these illegals being given the right to stay.
    I think anyone that comes into this country illegally should be treated as an invader and removed from this country immediately !!!!