A new final rule from the Executive Office for Immigration Review (EOIR), the office that oversees our nation's Immigration Court system, has substantially relaxed the requirements for serving as a Temporary Immigration Judge. Under this rule, people with little or no immigration experience can decide whether asylum seekers and other non-citizens are entitled to remain in the United States or must be deported.

Adding insult to injury, the rule also changes the language in the Code of Federal Regulations, and so now, instead of the term "noncitizens," the CFR will refer to "aliens."

Here, we'll discuss these changes, and how they might impact "aliens" in Immigration Court.

First, it's worth noting that, at the same time EOIR is hiring Temporary Immigration Judges (affectionately known as a TIJs), it is simultaneously firing scores of regular Immigration Judges (IJs). Indeed, more than 100 IJs have been fired or pushed out since January. This represents roughly 15% of the entire Immigration Judge corp. As you might expect, eliminating so many IJ positions is unlikely to help reduce the Immigration Court's 4.1 million-case backlog.

Prior to the new rule, TIJs were limited to "former IJs and Appellate Immigration Judges, EOIR administrative law judges ('ALJs') or ALJs retired from EOIR, ALJs from other Executive Branch agencies with the consent of their agencies, and Department [of Justice] attorneys with at least 10 years of legal experience in the field of immigration law." EOIR has now concluded that these requirements are "too narrow" and they impede the Agency’s "ability to use the TIJ authority to the extent needed."

Under the new rule, the only requirement for TIJs is "that they be attorneys." Speaking from experience, this is not a high bar. But what attorneys are likely to be hired as TIJs?

It's probably easier to guess who EOIR won't hire. I doubt the Agency will take lawyers from the private immigration bar or from non-profit organizations. Such lawyers would generally be unable to drop their client responsibilities for a temporary gig at EOIR, but even if they were available, few such attorneys would be ideologically aligned with the Trump Administration's goals. For this reason, there is not much chance EOIR will hire any of us. On the other hand, if EOIR is looking for private lawyers, I wouldn't mind giving it a go. Plus, I look good in a black robe. Very good.

More realistically, EOIR will hire DHS attorneys, military lawyers, and other government lawyers as TIJs. One worry is that such people would be biased against immigrants. In its memo, EOIR dismisses this concern: "To the extent commenters cast doubt on the ability of Department attorneys to serve as neutral arbiters and thus question whether they should be allowed to serve as TIJs, the Department disagrees with such unsupported accusations." I am not buying this. DHS attorneys are the prosecutors in Immigration Court. If they become TIJs, do we really expect them to hold their colleagues and supervisors accountable? Especially knowing that they will have to return to their old jobs. I feel more confidence in military judges, as long as they are chosen on a neutral basis and not based on their political ideology.

However, given that EOIR has been firing IJs perceived to be insufficiently in line with the Trump Administration's agenda, it stands to reason that the Agency will only hire TIJs willing to do the Administration's bidding. Under these circumstances, who will even apply for TIJ positions? I suspect the jobs will attract candidates who support the Administration's anti-immigrant agenda and who accept its many false statements about immigrants. This is the type of person who puts ideology before Justice, and would, almost by definition, lack the integrity and discernment to do the job properly.

Those who are hired will be appointed to six-month terms, which can be extended in six months increments. If a TIJ wants their judgeship extended, they will presumably have to tow the government line and deny more cases. This is a perverse incentive, which will not dispose TIJs to act as neutral arbiters of the immigration law.

Finally, the whole TIJ thing is a slap in the face to real IJs. Essentially, EOIR is sending the message that anyone can do their job and that experience does not matter. On the other hand, perhaps these days, anyone can do the job, given that the job now seems to be deporting people as quickly as possible with as little due process as possible.

The final rule also amends the language of the Code of Federal Regulations (CFR) related to immigrants. The CFR originally referred to "aliens," which many people came to view as derogatory, anachronistic, and, well, alien. In May 2024, the Biden Administration replaced "alien" with the friendlier-sounding "noncitizen" (though personally, I think it should be "non-citizen," as I like hyphens). Now, the Trump Administration is reverting to the more derogatory term and has replaced references to "noncitizens" in the CFR with "aliens." Adding insult to insult, the Administration has also replaced the term "unaccompanied child" with "unaccompanied alien child" because, you know, even though they are children, they are aliens first, and we would not want them to forget that.

As a former EOIR employee (Judicial Law Clerk class of 1998!), it is difficult to watch my old Agency succumb to the Trump agenda. EOIR has never really lived up to its ideals, but now, to see how non-citizens (and noncitizens) are disrespected and denied a fair hearing, shows that the Agency is becoming a rubber stamp for the Administration's agenda. Lowering the standards for TIJs will only make matters worse. Let us hope that these new judges will take their jobs seriously, and prioritize their duty to the law over fealty to their bosses' anti-immigrant agenda.

Originally posted on the Asylumist: www.Asyumist.com