The new mega master calendar hearings in immigration court are principally defined by their impossible sizes: record-breaking numbers of people expected to show up at a single time in a single courtroom for a removal hearing that will determine whether each person will be allowed to stay in the United States lawfully. For most people, the trajectory of their lives will be decided in minutes. For many, they won’t even be aware the hearing happened until it’s too late.
The mega master phenomenon is a prime example of how seemingly mundane bureaucratic processes—like who controls a calendar—are shot through with latent potential for political manipulation shrouded in paperwork. Mega master hearings is scheduling gone mad, but madness with a purpose: manufacturing deportations at the expense of due process. And it’s not the first of its kind.
In the first post, I introduced the mega master hearings that attorneys and reporters began documenting this spring, from the packed courtrooms in New York City and Baltimore to the judges suddenly assigned more than a hundred cases in a single morning. In this post, we take a closer look at the politics of immigration court dockets to understand how the novelty of mega masters was queued up by decades of meddling by both parties and by Congressional inaction on immigration court reform. This is not mere backstory. Our ability to fully make sense of mega masters depends on a deeper historical institutional analysis of the courts that news reports and simple attention-grabbing numbers will miss. So let’s start at the beginning.
Immigration proceedings preceded the immigration courts as we know them today. As far back as the late 1800s, certain forms of semi-judicial review were available in exclusion proceedings for immigrants attempting to enter the United States. Later, when deportations from inside the country grew, the process of determining who was deportable grew in complexity, as well, with incremental improvements to due process, the gradual separation of investigatory and adjudicatory roles (incomplete to this day), and the formalizing and partial insulation of the courts through the creation of the Executive Office for Immigration Review (EOIR) in the early 1980s. In the grand scheme of things, these improvements were wholly insufficient for preventing the crisis the courts are facing now, but not for lack of trying on the part of immigration judges themselves.
The restructuring of immigration enforcement agencies out of the Department of Justice (DOJ), where they had lived since 1940, and into the new Department of Homeland Security (DHS) left the EOIR in place and took everything else with it. This is why, today, the immigration courts continue to live inside the Department of Justice while ICE, CBP, and USCIS are under DHS. The relative separation of sub-agencies in the post-9/11 period has not, however, prevented routine conflation of duties in the courtroom, with immigration judges and ICE attorneys playing for the same team, and meddling from administrations that have used the government hiring process, policy memos, and precedent cases to guide the courts toward particular outcomes.
Despite literally decades of complaints about the fairness and independence of deportation decisions that go back in full force to the 1920s, Congress has almost entirely ignored the immigration courts. To this day, the courts are massively underfunded relative to increases in immigration enforcement, despite the fact that it is DHS—not the courts—that initiates removal proceedings and floods the court with cases well in excess of any judge’s ability to handle them.
Drawing on all these factors, it is common today to hear people say that the immigration courts are not real courts and the judges are not real judges. This is true in a way. Immigration judges do not have the security, authority, or independence that comes with most judicial positions and immigration court procedures are not nearly as rigorous or established as criminal or civil proceedings. Pointing out these differences usually comes with the implied goal of fostering disillusionment with the image of the courts as legitimate, which might be justified when speaking to audiences who assume that the immigration courts approximate other courts. But I take a different viewpoint than most on whether these differences make the immigration courts “not real court” or judges “not real judges.” The assumptions behind the question of what counts as “real” in law are something of an endless regression. Is Aileen Cannon a real judge? Is the FISA court a real court? Is the US criminal legal system a standard of institutional legitimacy? I just don’t think whether the immigration courts are “real” is entirely the right way to ask the question, even though I share fundamental concerns about whether the immigration courts will survive, or survive with any shred of legitimacy, beyond this administration.
What is more helpful for exploring the mega masters is looking at the ways that the immigration court dockets have become objects of meddling over the years because of the lack of institutional safeguards. As I said at the outset, mega masters might be new (we still need to look at the data), but the systemic conditions that enable them are not—not by a long shot. Let’s look at a few of the most visible examples of docket politics over the past four administrations.
Rocket Dockets. During the Obama administration, the immigration courts expedited cases of asylum-seeking families by placing them at the top of judges’ dockets in an attempt to reduce the length of time between entering the United States and receiving a decision on their case. The predictable consequence was that these families were given impossible timelines to get an immigration attorney—attorneys, not merits alone, being a determinative factor in asylum filings and outcomes—and were summarily ordered removed.
MPP Dockets. During the first Trump administration, the Orwellian-sounding Migrant Protection Protocols (MPP) required asylum seekers to wait in northern Mexico until the morning of their court hearing just inside ports of entry. These rocket dockets across an international border dramatically amplified the challenges of obtaining legal representation while creating additional barriers to basic survival much less actually getting to their court hearing on time. I wrote about this at the time: A Geographical Perspective on the Migrant Protection Protocols.
Dedicated Dockets. During the Biden administration, the immigration courts again implemented an expedited process for asylum-seeking families, placing them into special hearing schedules (i.e., “dedicated” dockets) and promising legal support and a 300-day decision timeline—neither of which materialized. These families were, again, less likely to find attorneys and file for, or get, asylum. I wrote about this at the time: Biden Administration’s “Dedicated Docket” Speeds Up Asylum Hearings – But at What Cost?
Operation Streamline. Started in 2005, Operation Streamline is a partnership between DHS and the DOJ to prosecute as many as 80 people at a time in federal court for unlawful entry misdemeanors. The cases move so quickly that few people have the opportunity to ever talk to an attorney and the vast majority of people leave the country hours after entering with a criminal conviction that typically bars them from ever migrating to the United States lawfully. We don’t talk about it as much these days, but Operation Streamline is the OG of abolishing due process by speeding cases along.
These examples illustrate the earlier point that control over the court’s docket is something that presidential administrations often take on as part of their broader executive control over immigration and border enforcement. And why wouldn’t they? It’s bureaucratic enough to go largely undetected by the public and seemingly small changes can lead to massive outcomes. The court’s docket is a real butterfly effect situation, and presidents want to be in control of the butterfly.
What do we learn from these examples? The simplest lesson is one about speed. In 2018, I wrote a book chapter on what I called “judicial acceleration,”1 which was my way of theorizing a more general strategy of determining case outcomes by determining the speed at which judges arrived at those outcomes.2 Immigration cases, especially asylum cases, are really quite Newtonian, when you think about it. F = m * a. A highly meritorious case shoved through the courts at breakneck speed is harder to win than a less meritorious (but still meritorious) case that has the time to develop a full and convincing record. Time—or more specifically, temporality—is weaponized. Immigration attorneys sometimes talk about the outcome of asylum cases hinging on whether they get “a nice judge on a good day.” But crank up the speed on the immigration hearing schedule, and it doesn’t much matter who you get or whether they are cranky. Fast cases means less representation, means less likely to appear, means less likely to file for, or win, asylum applications, means higher rates of removal orders. It’s really not that complicated. And it’s certainly no secret.
There are some who would argue that accelerating removal hearings simply weeds out unmeritorious cases and that providing immigrants more time to seek representation is merely a ploy to turn rotten bananas into banana bread. Under this theory, immigrants should be able to stand alone in front of a judge on Day One and win or lose based on whatever occurs to them to say, with the further assumption that the vast majority are fraudulent or bogus asylum seekers anyway and should never have been allowed to pursue asylum in the first place. There is no sense in pretending that there is no fraud in the asylum system; there is. But it is wildly overblown and willfully misunderstood. Without digressing too far, I will simply say this: the reason that attorneys make such a huge difference is not that attorneys universally coach sympathetic stories out of unsympathetic clients (though this certainly happens); rather, the narrativized experiences of immigrants and the technical (and largely mysterious) elements of presenting a meritorious asylum claim are wildly different, requiring nothing short of translating between two vastly different languages. Pile on top of that the demand for rigorous documentation to meet largely informal evidentiary standards for supporting these claims and you have a process that is far from simply meritorious. The simple truth is, most immigrants who seek asylum never get to make a complete presentation of their case to the courts, and even the best judges are forced to do the best with what they have in front of them. The worst judges have already decided to deny all of their asylum cases before they even walk into court in the morning.
This isn’t a simple Left versus Right story, either. The Biden administration and the Obama administration have also played politics with the court dockets in ways that have done more to hurt immigrants than to help them. Paroling hundreds of thousands of people—very many of them families—into the country to pursue asylum, then all but ensuring they never get a chance at a meaningful asylum hearing while also ensuring that a large swath of Americans would be outraged over the use of parole is possibly one of the most bizarre policy decisions I’ve had the misfortune to live through. I can imagine the well-intentioned logic behind it: give more people lawful pathways but move the cases along faster. But there is nothing—nothing—about the history of accelerated dockets that suggests that’s a good idea for people actually in the system.
I should add that my own research on immigration lawyering and the immigration courts does not suggest that it’s better for cases to take forever. On that basis, I am not principally opposed to proposals that offer faster resolution, particularly when those decisions are handled by asylum officers in USCIS in a so-called non-adversarial setting instead of in the courts. The problem is, no study to date that I’m aware of has been able to show that we have the ability or interest in both accelerating cases and also accelerating legal representation and other determinative positive factors.
I’m not necessarily lumping all of the accelerated docket programs mentioned above together. I’ve dug into the details of each in the past and don’t necessarily want to rehash here an analysis of the data and a discussion of the political context of each. Rather, I want to simply emphasize an overarching conclusion that lays the groundwork for the analysis of “mega masters” dockets: despite the apparent apolitical nature of something as bureaucratically mundane as a court docket, we can see that the immigration court’s docket is political and has become increasingly politicized as a tool for executing particular agendas and manufacturing certain outcomes.
It’s time for more people—and the news media especially—to understand that the violence of the immigration system is not reducible to the most photographable (and TikTokable) instances of ICE officers ramming down doors without a warrant and detaining people in tent facilities near military bases. The violence of the immigration system is on display in the nameless and faceless (for now) bureaucrat with write-level access in a database to reschedule tens of thousands of removal hearings with little notice and generate an avalanche of removal orders. This is the definition of bureaucratic violence, and its relationship to ICE agents in masks is intrinsic yet nearly invisible because our lizard brains can quickly create an emotional connection to a single person dragged out of a car but struggle to do the same for a million people whose lives are destroyed by a change in paperwork.
With this context in place, this next post will dive into the data on mega master calendar hearings. If you stayed with me through the first two posts (rather than skipping ahead to the data), you’re going to be in a much better place to understand the series of questions I ask and the decisions I make going into the analysis. And you’ll be better prepared to join the conversation by asking new questions, catching things that I might have overlooked, and communicating the findings to others. Subscribe if you haven’t already and let’s take a look at some data!
I am not providing citations and links for all of the claims here simply due to a lack of time. But if there is sufficient interest (especially from people willing to invest as paid subscribers, wink-wink), I can pull together a bibliography of work on the immigration courts.
Kocher, A. (2018). Immigration Courts, Judicial Acceleration, and the Intensification of Immigration Enforcement in the First Year of the Trump Administration. In J. Kowalski (Ed.), Reading Trump: A Parallax View on the US Presidency. Palgrave.
The Center for Immigration Law and Policy at UCLA School of Law called it “accelerated dockets.” UCLA School of Law. (2022). The Biden Administration’s Dedicated Docket: Inside Los Angeles’ Accelerated Court Hearings for Families Seeking Asylum.
Thanks as always for your thoughtful post. As an immigration activist for 10 years, I truly appreciate the effort and have posted to Witness at the Border on Facebook where 18K members hang out.
Another example of your exemplary writing skills and expertise in the immigration system. Political interference “both” politicians parties and mainstream media indifference have led to the beleaguered state EOIR Immigration court system.