lawrota.com

Immigration law is complicated. Most people understandably tune it out. But a recent pair of decisions from the Board of Immigration Appeals reveals something so fundamentally unfair that it deserves attention, even from people who don’t follow this stuff.

Here’s the short version: if the government wants to deport you quickly, the immigration judge can skip your hearing and order you removed based on paperwork alone. But if the government agrees you deserve protection, the judge can reject that agreement and force you into a full trial anyway.

Efficiency speeds up deportations. “Independent judgment” slows down grants of protection. Both principles exist in the law, but they only get deployed in one direction.

One Woman’s Story

Consider Ms. J-H-M-H-, a transgender woman from Honduras. She came to the US seeking protection under the Convention Against Torture, which prevents the government from sending someone to a country where they’ll likely be tortured.

Her evidence was substantial. She was sexually abused as a child in Honduras. She submitted expert testimony documenting violence against transgender people there, including murders. And her brother, who also presented as female, was killed within days of being deported back to Honduras.

The DHS attorney reviewed all of this and agreed with her. Both lawyers went to the immigration judge with a joint stipulation: she qualifies, grant her protection.

In virtually any other legal setting, that would end the case. Prosecutors settle criminal cases through plea agreements. Civil litigants reach settlements that courts routinely approve. When both sides agree, courts generally accept it.

Not here. The immigration judge rejected the stipulation, demanded a full hearing, and insisted she testify. When she relied on the written agreement and her documented evidence instead, he denied her claim. The Board of Immigration Appeals upheld this, ruling that immigration judges must exercise “independent judgment” and aren’t bound by what the parties agree to.

She may now be deported to a country where the government itself acknowledged she faces torture.

Meanwhile, in Another Courtroom

About a month before that decision, the BIA decided Matter of H-A-A-V-. A man from Peru had applied for asylum based on gang extortion. Before he could have a hearing, present evidence, or testify, the immigration judge looked at his written application and decided it wasn’t legally strong enough to win.

Case dismissed. No hearing. Ordered removed.

The BIA blessed this approach, citing the nearly four million cases pending in immigration courts and encouraging judges to “immediately resolve cases” that lack “viable legal paths for relief.”

This followed a policy memo from EOIR in April 2025 telling judges they should pretermit asylum applications to fulfill their “duty to efficiently manage their dockets.”

The One-Way Ratchet

Put these two decisions side by side and the asymmetry is stark.

Need to remove someone fast? Efficiency. Skip the hearing, deny based on paperwork, clear the docket.

Both parties agree someone deserves protection? Independent judgment. Reject the agreement, demand a full trial, make them prove it the hard way.

The legal system has principles pointing in both directions. Efficiency matters. So does judicial independence. But these decisions deploy those principles selectively, always landing on the side of removal.

What Is DHS Even For?

This raises a deeper question about the role of DHS attorneys in immigration court.

DHS has enormous authority over immigration. Congress gave them power to grant relief, exercise prosecutorial discretion, and set enforcement priorities. The Supreme Court confirmed in United States v. Texas (2023) that DHS can decide which noncitizens to pursue and which to leave alone.

So when a DHS attorney reviews a case and concludes someone qualifies for protection, that should mean something. They represent the government. They’ve evaluated the evidence. They’ve determined the legal standard is met.

But these decisions tell DHS attorneys their judgment is worthless—unless they’re seeking removal. If they agree with the noncitizen, the judge can override them. If they want someone deported, the judge can expedite it.

DHS attorneys are being reduced to a single function: advocates for removal, nothing else. Settlement, discretion, and professional judgment are stripped away whenever they might help someone stay.

Part of a Bigger Pattern

These decisions don’t exist in isolation. They’re part of a systematic effort to close off asylum access.

The AILA policy brief documents the broader picture. An executive order has blocked asylum at the southern border entirely since January 2025. The refugee resettlement program has been gutted, with the administration planning to set the refugee ceiling at a record low of 7,500. New Attorney General decisions have eliminated asylum eligibility for domestic violence survivors, gang violence survivors, and those targeted for family relationships. DHS attorneys are reportedly being instructed to seek dismissals in all asylum cases filed by Spanish-speaking nationals from South and Central America except Venezuelans and Cubans. Courts are moving forward on cases before asylum seekers can find attorneys.

And now, through these BIA decisions, even the courtroom itself has been tilted. You can be ordered removed without a hearing if your case looks weak on paper. But you cannot receive protection without a fight, even when the government agrees you deserve it.

What Comes Next

Immigration courts sit within the executive branch, under the Department of Justice. That’s the structural problem. Judges answer to the Attorney General, and the Attorney General answers to the President. When the administration wants more deportations, the system delivers.

The cleanest fix would be creating an independent immigration court, similar to bankruptcy courts or the tax court. Bills have been proposed, but Congress has shown no interest.

In the meantime, noncitizens can appeal to federal circuit courts, which are independent. Ms. J-H-M-H- could argue that rejecting a stipulation both parties agreed to, without legitimate justification, violates due process. Federal judges might see this differently than the BIA.

But for now, the message from the immigration courts is clear. Efficiency serves removal. Independence blocks protection. The rules bend whichever way deports more people faster.

And if you’re a transgender woman from Honduras whose own persecutors include the police, whose brother was murdered after deportation, whose case was strong enough that the government itself agreed you should stay—none of that matters. The judge has independent judgment. He’s just only required to use it against you.