As the Trump administration continues its purge of immigration judges and enacts sweeping policy changes, two former Bay Area immigration judges are giving an inside look at the upheaval and explaining why they believe the public should be paying attention.
The judges sat down with NBC Bay Area’s Investigative Unit for a wide-ranging interview covering the termination of immigration judges, a wave of new policy memos concerning immigration court operations, and why they fear judicial independence is in jeopardy.
“Honestly, it’s not easy to speak out and it’s a little bit frightening,” said former Immigration Judge Kyra Lilien, who was abruptly fired in July from her post at the immigration court in Concord shortly before completing her two-year probationary period.
Lilien, who was appointed by the Biden administration in 2023, said more than a dozen other judges from her probationary class were fired the same day. The judge recalls being in the middle of a hearing when an email hit her inbox informing her that she was being terminated.
“It makes no sense to eliminate high performing expert judges in the name of efficiency,” said Lilien, noting her history of exemplary performance reviews. “It’s just ludicrous.”
Former Judge Elizabeth Young, who served as Assistant Chief Immigration Judge in San Francisco before being promoted to Regional Deputy Chief Immigration Judge last year, ultimately resigned shortly after President Trump took office for the second time.
Just 30 minutes following President Trump’s inauguration, Young says her bosses were fired and she was reassigned from her post supervising immigration judges in the court’s western region.
“I had no idea what to do,” Young said. “There was no precedent for this. It was shocking.”
After weeks of sitting at home without direction, Young said she decided to step down from the working group she had been moved to.
“All of us that were assigned to this working group quickly realized that it was just a way to kind of get us out of the agencies that we were in,” Young said.
While the mass firings of judges have sent shockwaves through immigration court, the judges said they believe the personnel moves are just one component of a larger plan: For the Trump administration, using the power of the executive branch, to reshape the country’s immigration system.
“This is one piece of a very complex web of policies, executive orders, and actions,” Young said. “It’s an end run around changing the law.”
The Trump administration has stated it’s merely enforcing existing immigration laws that were ignored by President Biden.
“Over the last 4 years, the prior administration invited, administered, and oversaw an unprecedented flood of illegal immigration into the United States,” an inauguration day executive order from President Trump stated. “Millions of illegal aliens crossed our borders or were permitted to fly directly into the United States on commercial flights and allowed to settle in American communities, in violation of longstanding Federal laws.”
Young and Lilien are just two of the 139 immigration judges who have been fired, resigned, or involuntarily transferred, according to the union that represents them. Thirteen of the fired judges served in either San Francisco or Concord.
“San Francisco is one of the areas that’s been disproportionately targeted for firings by this administration,” said Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE).
Biggs questioned the timing and scope of the firings, as immigration courts face massive backlogs and judges handle upwards of 700 cases each year.
To replenish the thinning ranks of immigration judges across the country, the Trump administration recently authorized up to 600 military attorneys to serve as temporary immigration judges.
“Their strategy here is to remove the current immigration judges, as many as they can, and replace them,” Biggs speculated..
Immigration judges serve under the Department of Justice’s Executive Office for Immigration Review (EOIR), which is part of the executive branch. It means the Attorney General has the power to hire and fire them.
The judges say the administration is wielding that power to exert pressure on judges
“There’s a very strong idea that if you don’t follow the policy, you’ll lose your job,” Lilien said. “I think a lot of judges feel a lot of fear and pressure that’s unprecedented.”
Lilien said much of that pressure has come in the form of dozens of new EOIR policy memos, some of which have suggested how, and how fast, judges should rule on cases.
“The pressure to resolve cases quickly, the pressure to increase the number of cases you resolve, the pressure, frankly, to deny cases,” Lilien said. “There were so many pressures that came together that really pushed judges into a position where you felt you had to rule a certain way in order to preserve your job.”
Young said she never had to face those pressures directly, since she had already resigned, but has been closely following the influx of new policies, such as one that encouraged judges to throw out “insufficient” asylum applications without a hearing
“From the outside, I know that I would not want to be a judge right now because it would be very difficult to remain independent,” she said.
To alleviate the perceived pressure, Lilien said it’s worth considering removing immigration judges from Department of Justice control.
“There is no room for independent adjudication when we are hamstrung by the Attorney General,” Lilien said. “It’s just not possible with this structure.”
EOIR did not respond to NBC Bay Area’s request for comment, but a July EOIR policy memo on “adjudicator impartiality and independence” reminded judges they are “inferior officers subject to both appointment and removal by the Attorney General.”
Acting EOIR director Circe Owen has also been critical of immigration judges for “not efficiently managing their dockets.”
Judges aren’t the only ones experiencing fear. Nearly every immigrant we’ve talked to at immigration court said they feel it as well.
Since May, ICE agents have had a heavy presence at the immigration courts in San Francisco and Concord and have arrested dozens of immigrants following seemingly routine hearings.
“The presence of ICE in the courthouse really exacerbated that [fear],” Lilien said. “There was just incredibly increased tension, and a couple of things happened as a result: A lot of people stopped coming to court, they missed their hearings, they lost their cases by not coming to court.”
Young said the agency’s enforcement operations within the hallways of immigration court are unprecedented.
“Historically, that had never been the practice,” Young said. “In fact, there was an emphasis on understanding that if ICE was able to come in whenever they want and arrest anyone, that would deter respondents from coming.”
An ICE spokesperson previously told NBC Bay Area that Secretary Noem is “reversing Biden’s catch and release policy that allowed millions of unvetted illegal aliens to be let loose on American streets” and that undocumented immigrants in the country for less than two years were being put into expedited removal, which fast-tracks deportation proceedings.
As they watch the wave of firings continue, the Young and Lilien have been searching for a common thread that might explain which judges are being selected for termination.
“The trend seems to be that people who at any point in their lives ever represented a noncitizen,” Lilien said.
Lilien said she believes judges hired by the Biden administration, like herself, were also particularly vulnerable.
Then there are judges’ asylum approval rates, which many attorneys and immigrant rights advocates have suggested could be a factor in the firings.
Some of the judges fired in San Francisco had asylum grant rates north of 90%, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Lilien’s was about 77%, according to TRAC, though she says those numbers are outdated.
Both judges said comparing asylum grant rates between judges can be misleading, and the numbers have never been used to measure a judge’s performance.
“In my case, I think it did not have anything to do with my firing,” Lilien said. “I was part of a class of judges who were fired and many of them had very, very low grant rates.”
Asylum grant rates, they said, can dramatically vary between judges based on several factors, including the types of cases on a judge’s docket, the percentage of immigrants in their courtroom who have attorneys, and the geographic location of the court.
San Francisco, the judges said, has a higher rate of represented respondents, hence higher asylum grant rates. It’s also within the 9th Circuit, where established case law is generally more favorable to respondents who are seeking asylum, according to the judges.
“So generally speaking, you’ll see a higher level of grants within the 9th circuit,” Lilien said.
In an August policy memo, however, the Department of Justice stated that judges with “outlier” asylum grant rates could face scrutiny.
“Adjudicatory outliers or statistically improbable outcome metrics, particularly relative to EOIR’s overall adjudicator corps and after controlling for sample size and relevant docket characteristics, may be indicative of a systematic bias or failure to adhere to applicable law that warrants close examination and potential action,” the memo stated.
While the judges puzzle over the firings, and what potential recourse they might have, they agree the entire immigration system is in urgent need of an overhaul. The country’s economy is dependent on immigrants, they said, and it’s important for Congress to update outdated immigration laws in a way that makes sense in the 21st century.
“I think we need to have a much more comprehensive review,” Young said. “We need to have a viable way for people to come here and temporarily work if that’s what our economics requires. Maybe we need a better system for addressing asylum. All those things are absolutely true, but it’s not within the purview of the executive branch to make those changes.”.
Source: NBC Bay Area