Picture a Tuesday morning in a nondescript federal building in Chicago. A 34-year-old Guatemalan woman — call her María — sits at a respondent’s table with a court-appointed interpreter speaking into a small earpiece. She does not have a lawyer. She does not fully understand the legal standard she must meet. Across from her, a government attorney with years of courtroom experience presents a methodical case for her removal. The immigration judge, managing a caseload of over 3,000 pending cases, has perhaps 45 minutes to determine whether María will be deported to a country where, she says, her former partner once held a machete to her throat.
This is American due process in immigration court. It is legal, it is constitutional—and to many who work within it, it is a quiet catastrophe.
A Court System Unlike Any Other
Most Americans have an intuitive sense of what a courtroom looks like: a judge in a robe, adversarial attorneys, constitutional protections, the right to counsel. Immigration courts share the aesthetic but diverge dramatically on the substance.
The nation’s immigration court system is administered by the Executive Office for Immigration Review (EOIR), a branch of the Department of Justice—not an independent judiciary. This single structural fact carries enormous consequences. Immigration judges are not Article III judges with lifetime tenure and constitutional independence. They are, technically, employees of the attorney general, who has historically had the power to set precedents, overturn individual rulings, and direct judicial priorities through policy memoranda.
Critics, including the National Association of Immigration Judges, argue that asking judges to serve as neutral arbiters while working for the same executive branch that prosecutes the cases in front of them is a structural conflict that undermines the integrity of the system.
As of mid-2026, there were roughly 660 permanent immigration judges nationwide, plus several dozen temporary judges, handling a backlog of more than 3.3 million pending cases, according to the EOIR’s own data and the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. The average wait time for a hearing has stretched beyond four years in some jurisdictions. In some courts, the wait exceeds a decade.
Unlike criminal defendants, individuals in removal proceedings have no Sixth Amendment right to government-appointed counsel. The constitutional standard governing immigration proceedings comes from the Fifth Amendment’s Due Process Clause, which courts have interpreted to require only a “full and fair hearing”—a standard that has proven maddeningly elastic in practice.
The Right to Counsel That Isn’t
The most consequential gap between immigration court and nearly every other legal proceeding in America is the absence of a guaranteed right to a lawyer. Respondents in removal proceedings—which can result in permanent exile from the country, family separation, and return to potentially life-threatening conditions—must find and fund their own legal representation or navigate the proceedings alone.
The numbers are striking. According to TRAC data analyzed over recent years, roughly 37% of all immigrants in removal proceedings appear without legal representation. For detained immigrants, the figure is even more alarming: studies have found that more than 70% of detained respondents face their hearings without counsel. Children, including unaccompanied minors, have appeared in immigration court without attorneys—a practice that drew widespread condemnation when documented in news reports around 2018.
The consequences of this gap are empirically measurable. A 2016 study by the American Immigration Council found that detained immigrants with lawyers were 10.5 times more likely to succeed in their cases than those without. Even in cases with similar underlying facts, legal representation was one of the single strongest predictors of outcome—not the merits of the case.
A respondent without a lawyer is expected to understand the legal distinctions between asylum, withholding of removal, and Convention Against Torture protection, to submit evidence correctly, to make legal arguments, and to cross-examine government witnesses — tasks that would challenge most American lawyers working in an unfamiliar area of law, let alone people who may not speak English.
Some jurisdictions have attempted to fill this void. New York City began funding the New York Immigrant Family Unity Project in 2014, described as the nation’s first public defender system for immigrants facing deportation. A Vera Institute of Justice evaluation projected that it would raise the share of detained clients winning their cases from about 4% to 48%. Similar programs have since launched in cities including Chicago, Denver, and parts of California.
What Actually Happens Inside a Removal Hearing
For those unfamiliar with removal proceedings, the mechanics are worth understanding in detail. The process typically begins when an individual receives a Notice to Appear (NTA)—a charging document alleging that the person is removable under the Immigration and Nationality Act. This can happen after an arrest at the border, after a visa overstay is flagged, or following a criminal conviction that triggers immigration consequences.
From there, most respondents will attend an initial “master calendar” hearing—a brief proceeding where the judge confirms identity, addresses basic procedural matters, and schedules a future individual merits hearing. These master calendar sessions are often conducted with multiple respondents in the courtroom simultaneously, with hearings lasting as little as five minutes.
The individual merits hearing is where the substantive case is decided. In asylum cases, the respondent must demonstrate that they have suffered persecution or have a well-founded fear of future persecution on account of one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. That last category—“particular social group”—has been the subject of intense legal litigation and dramatically shifting interpretations.
In 2018, then-Attorney General Jeff Sessions used his power to certify a case to himself and issued a ruling in Matter of A-B-, which significantly curtailed the ability of domestic violence and gang violence survivors to qualify for asylum. The decision was challenged in court and vacated in its entirety by Attorney General Merrick Garland in 2021, but it illustrated how profoundly administrative decisions—not legislation—can reshape the legal landscape overnight for hundreds of thousands of pending cases.
Respondents who cannot meet the asylum standard can alternatively seek withholding of removal (a higher standard but also more durable protection) or protection under the Convention Against Torture (CAT), which requires demonstrating that torture by or with the acquiescence of a government is more likely than not upon return. Each standard has distinct requirements, evidentiary burdens, and legal implications.
Throughout this process, immigration judges are managing caseloads that immigration law scholars widely describe as unsustainable. In 2019, the American Bar Association described the immigration court system as “irredeemably dysfunctional and on the brink of collapse.”
The Asylum System’s Particular Vulnerabilities
Asylum cases represent some of the most complex and emotionally fraught matters in the immigration court system, and they expose the system’s structural weaknesses with particular clarity.
To win asylum, applicants must not only meet the legal standard but must often do so by providing documentary evidence from countries with limited record-keeping, testifying credibly about traumatic events (often through interpreters whose accuracy can vary), and demonstrating that harm was on account of a protected ground—a legal nexus requirement that can be technically demanding even for trained lawyers.
Credibility findings can sink a case. If a survivor of torture has an inconsistency in their account—perhaps between an initial border screening and a later hearing, perhaps because trauma affects memory—a judge can find them not credible and deny the case entirely, even though research on traumatic stress suggests such inconsistencies often reflect trauma rather than deception.
The credibility issue is compounded by initial processing. Many asylum seekers are first screened in Credible Fear Interviews (CFIs) conducted by U.S. Citizenship and Immigration Services (USCIS) asylum officers, often within days of arrival, sometimes while the applicant is still in detention and still processing the shock of apprehension. The landmark “Refugee Roulette” study, published in the Stanford Law Review, found striking disparities in how different asylum officers and judges decided similar claims—suggesting the process is far less systematic than its bureaucratic framing implies.
The rate at which asylum cases are granted varies with startling extremes across courts and judges. TRAC analysis has consistently shown that asylum grant rates fluctuate from below 10% to above 80% depending on the jurisdiction—and even from judge to judge within the same courthouse. Judges in some courts deny the overwhelming majority of asylum claims, while counterparts in other cities approve most of the cases they hear. Critics argue that variation this extreme is itself evidence that the law is not being applied consistently.
Detention, Expedited Removal, and the Truncation of Rights
For immigrants held in detention facilities—a population that swings with administration priorities and exceeded 65,000 on a given day in mid-2026, according to TRAC—the procedural landscape becomes even more constricted.
Detained immigrants face the same hearings as non-detained respondents, but under conditions that systematically disadvantage them. They have less time to find and prepare with counsel. Their access to legal materials, phone calls, and in-person meetings with attorneys is often severely limited. Many detention facilities are located in rural areas far from major legal service providers. And the pressure to accept a voluntary departure—essentially an agreement to leave without a formal order, which carries fewer long-term legal consequences than a deportation order but forecloses certain forms of relief—can be enormous when the alternative is indefinite detention.
Beyond the standard immigration court process lies an even more truncated procedure: expedited removal. Under this authority, certain individuals apprehended near the border or who have been in the country for a short period can be deported without ever seeing an immigration judge—unless they express a fear of return and pass the credible fear screening. The first Trump administration expanded expedited removal in 2019 to anyone anywhere in the country who could not prove two years of continuous presence; the Biden administration reversed that expansion, and the second Trump administration reinstated it in January 2025, prompting renewed legal challenges.
Civil liberties organizations have raised sustained concerns about expedited removal’s compatibility with due process, particularly for individuals who may have valid legal claims but who—due to language barriers, fear of authorities, or simple unawareness of their rights—fail to articulate that fear during a brief CBP encounter.
What Reform Could Look Like, and Why It’s So Hard
There is surprising consensus among immigration lawyers, former judges, and policy scholars about what structural reforms would most meaningfully improve due process in immigration courts—even as they disagree sharply about enforcement priorities and immigration levels.
Making immigration courts independent from the Department of Justice stands near the top of virtually every serious reform proposal. The American Bar Association, the National Association of Immigration Judges, and numerous law school clinics have argued that an Article I immigration court—a specialized independent court created by Congress, similar to the U.S. Tax Court or the Court of International Trade—would insulate adjudication from political pressure and provide genuine judicial independence.
Universal legal representation, modeled on successful local programs, is a second widely-cited reform. One widely cited estimate put the cost of appointed counsel for detained immigrants nationwide at roughly $208 million a year—significant, but a small fraction of immigration detention spending, which Congress expanded in 2025 with $45 billion over four years for new detention beds.
Investing in more judges is necessary but not sufficient on its own. Simply increasing the number of immigration judges without addressing structural conditions has historically led to pressure to resolve cases faster rather than more fairly, according to research by the Migration Policy Institute.
The political barriers to reform are formidable. Immigration courts are caught between a policy debate that has become almost entirely defined by enforcement politics, where any improvement to procedural rights is frequently characterized by critics as an obstacle to enforcement rather than as a legal or moral imperative. Comprehensive immigration reform legislation has failed repeatedly in Congress. Successive administrations have used executive authority—in opposite directions—to change enforcement priorities, procedural rules, and legal standards, creating whiplash that has proven destabilizing even for people trying to follow the law in good faith.
Meanwhile, people like María in Chicago go on waiting. Their hearings are scheduled, adjourned, rescheduled. Their lawyers—if they have them—work staggering caseloads for nonprofit wages. Their judges labor under impossible conditions to apply a body of law that changes with each new administration.
The American legal system’s promise is not perfect outcomes but principled process—the idea that before the state deprives anyone of liberty or home, it will give them a fair hearing. Whether that promise is being kept inside the approximately 70 immigration courts operating across the United States today is not a matter of partisan interpretation. It is a matter of documented, measurable fact. And the documentation, increasingly, tells a troubling story.