Tag Archive for: Immigration Court

Cyrus Mehta

Board of Immigration Appeals Allows Immigration Judges to Disregard Party Stipulations

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The Board of Immigration Appeals in Matter of J-H-M-H held on October 7, 2025 that even if the parties in a case – the noncitizen respondent and the government – have stipulated to certain aspects of the case, Immigration Judges exercise independent judgment and are not required to accept party stipulations. In this case, the respondent and the DHS submitted a joint memorandum  in October 2023 before the Immigration Judge stipulating that the respondent identified as a transgender woman, that the testimony would be consistent with the written materials submitted, and that the respondent was eligible for deferral of removal under the regulations implementing the Convention Against Torture. The IJ rejected the stipulation and set the case for hearing to take testimony. The respondent did not testify in support of the claim and sought to rely on the contents of the application, the personal statement and the stipulation. The IJ denied relief under CAT.

In their appeal, the respondent relied on the Board’s 1989 decision in  Matter of Fefe, which held that at a minimum an asylum applicant take the stand, be placed under oath and be questioned whether the information in the written application  is complete, and that the examination of the respondent will be brief only where the parties have stipulated that the applicant’s oral testimony would be consistent with their written application and be believably presented.  The Board, however, held that Matter of Fefe is no longer binding preceded as it predated the enactment of INA 240(b)(4)(B) in 1996. This provision allows noncitizens to examine evidence against them, present evidence on their own behalf and to cross-examine witnesses. Yet,  the Board recently held in September 2025 in Matter of H-A-A-V- that an IJ may pretermit an asylum application without a full evidentiary hearing on the merits of the claim and also held that Matter of Fefe is no longer binding precedent. It is paradoxical that the Board affirmed an IJ’s insistence to hold a hearing despite a joint stipulation in Matter of J-H-M-H– but affirmed an IJ’s ability to pretermit an asylum application in Matter of H-A-A-V- without a full evidentiary hearing on the merits of the claim.

What does this case mean for future cases? We often stipulate with the DHS attorney on various aspects of the case. For example, there could be a stipulation on the bona fides of the marriage in a review of the I-751 petition in immigration court. The parties may stipulate that allegations made by a foreign government through an Interpol Red Notice against the respondent have no basis and should not be considered when adjudicating an asylum or adjustment application.  Stipulations indeed encourage efficiency and allow the parties to focus on the essential aspect of the case. Under the Trump administration, an IJ may not want to go along with a stipulation out of fear that he or she may get fired. Or a newly appointed military judge inexperienced in immigration law who may not be favorably inclined to grant relief or benefits may want to override a stipulation. 

Stipulations are especially critical in protecting vulnerable clients with mental competency issues. They could include both children and adults with diminished capacity. If they risk facing substantial harm, a joint stipulation where the parties can agree to the respondent’s eligibility for asylum and related relief can serve as an adequate protective measure if the respondent may be unable to testify due to diminished capacity.  A lawyer who represents a client with diminished capacity is required to seek protective action if the client will face harm under ABA Model Rul 1.14, and a stipulation would be one way to protect the client with diminished capacity.  

The Board cited the regulation at 8 CFR 1003.10(b) to uphold the IJ disregarding the stipulation in Matter of J-H-M-H: “In deciding the individual cases before them…immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is necessary or appropriate for the disposition or alternative resolution of such cases.” However, this regulation does not preclude a stipulation from being considered binding on the parties. 

The BIA in Matter of J-H-M-H has unfortunately empowered IJs to disregard stipulations, which in turn would undermine efficiency and result in more backlogs. If there is no case or controversy between the government and the respondent, the IJ ought not be playing any role. This decision promotes more inefficiency and backlogs in an already dysfunctional system.   Immigration practitioners must be prepared to go through a full-fledged hearing  even if there has been a stipulation in case an IJ insists on a full hearing. On the other hand, under Matter of H-A-A-V-, as IJ’s have the power to pretermit asylum  applications without a full evidentiary hearing, practitioners must submit comprehensive applications to ensure that the respondent can establish prima facie eligibility, and in the event of a pretermination, there is a sufficient basis in the record to appeal the decision. 

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

Cyrus Mehta

To What Extent Can Walmart’s Successful  Blocking of an Administrative Law Judge in the Executive Office for Immigration Review  Extend to  Immigration Judges?

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By Cyrus D. Mehta and Kaitlyn Box

On March 25, 2024 Chief Justice J. Randal Hall of the United States District Court for the Southern District of Georgia, Statesboro Division granted Walmart’s motion for summary judgment in Walmart Inc. v. Jean King, which alleged that the administrative proceedings against the company for violations of immigration-related recordkeeping requirements should be halted because they were “being conducted by an administrative law judge (“ALJ”) who is unconstitutionally shielded from the President’s supervision. ALJs like Jean King, who was presiding over the proceedings against Walmart and is the Chief Judge within the Office of the Chief Administrative Hearing Officer (OCAHO), can be removed from their position only for “good cause” as determined by the Merits System Protection Board (MSPB) and by the president for “only for inefficiency, neglect of duty, or malfeasance in office”. Walmart alleged that this system violates the Constitution by insulating ALJs “from presidential control by two levels of removal protection”. Walmart argued that Article II of the Constitution, which commands the President to “take Care that the Laws be faithfully executed”, requires him to have the power to remove executive officers. Only two types of officers have been determined to be exempt from the President’s removal power – principal officers, who report directly to the President, and inferior officers, who are appointed by the President but supervised by others. See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021). Walmart argued that ALJs do not within either of these exceptions, “so the removal scheme that protects them is unconstitutional twice over”. Judge Hall agreed with Walmart and granted the motion for summary judgement, finding that “the multilevel protection from removal present for the OCAHO ALJs is contrary to Article II, and contrary to the executive power of the President.”

 This case is just one in a string of recent examples of constitutional challenges to the authority of ALJs. In a previous blog, we discussed Securities and Exchange Commission v. Jarkesy, which, in part, concerns whether the Congress’ decision to allow ALJs to be removed only for “good cause” violates Article II. The Supreme Court heard oral argument in Jarkesy in November 2023, and its decision in the case could have sweeping consequences for the future of ALJs. We also reported on SpaceX’s successful challenge against the DOJ’s prosecution of discrimination allegations against it under INA 274B. SpaceX’s Appointments Clause challenge was unique as it argued that the Attorney General, despite appointing OCAHO ALJs, does not review their decisions under INA 274B as an aggrieved party under  INA § 274B(g)(1) must seek review in the court of appeals.

Jarkesy and Walmart also raise the possibility about whether Immigration Judges (IJs), too, could face constitutional challenges. Like the OCAHO, they too are housed within the Executive Office for Immigration Review under the purview of the Department of Justice.

However, in Fortunato de Jesus Amador Duenas v. Garland, the Ninth Circuit rejected an argument that the removal process for IJs violates Article II. The Court reasoned that the Attorney General (AG), who supervises IJs, enjoys the unrestricted authority to remove them at his discretion. Historically, AGs have exercised this power fairly liberally. John Ashcroft, the AG under President George W. Bush, fired a number of IJs who had reputations for being lenient toward immigration. See Jill Family, Regulated Immigrants: An Administrative Law Failure, 29 Bender’s Immigration Bulletin 401, 415 (March 14, 2024). Jill Family’s article in providing a fascinating history of the APA points out that Congress exempted deportation and exclusion cases from the Administration Procedure Act. See Supplemental App. Act of 1951, Pub. L.64 Stat. 1044 (1951).  During the Trump administration, AG Jeff Sessions similarly removed IJ Steven Morley from handling the Castro-Tum case and replaced him with a different judge after Morley had previously administratively closed it.  On the other hand, IJs are also subject to the Merits System Protection Board (MSPB) like the ALJ in the Walmart case. In Roy v. MSPB,  the only reason why Susan Roy, a former  Immigration Judge,  could not make a claim in the MSPB is because she had not served two years. Otherwise, Roy v. MSPB shows that IJs who have completed two years can challenge their removal to the MSPB.  IJs are also subject to union control, which was not brought up in Fortunato de Jesus Amador Duenas v. Garland.

Even if the Supreme Court in Jarkesy ultimately rules that ALJs are unconstitutional, it is unlikely that the holding would extent to IJs notwithstanding the fact that IJs may also receive some modicum of protection from removal. IJs have historically been susceptible to removal by the AG who is appointed by the President. They can be reassigned from a case and the  AG also has the authority to certify decisions made by an IJ to himself and overrule them. There is another part of Jarkesy that brought a Seventh Amendment challenge because Mr. Jarkesy was subject to an administrative proceeding against him and was deprived of a jury trial in federal court.  If the Supreme Court rules in favor of Mr. Jarkesy on his right to a jury trial, this may invite challenges with respect to the authority of IJs. Even here, S. Michael McColloch, counsel for Jarkesy, argued that the court should hold that when the government brings a case with the “same essential function” as a traditional lawsuit for claims such as fraud, it should have to bring the case in federal court, where a jury trial right would apply. However, when pressed further he emphasized that Jarkesy should not apply to adjudicating government benefits and debts and that  the authority of IJs should not be impacted by the outcome of the case.

It remains to be seen whether a broad ruling in Jarkesy will strike at the heart of the immigration court system. If the Supreme Court’s holding brings about the evisceration of the immigration courts, Congress could be forced to create an independent immigration court system under Article I of the Constitution as a replacement. An Article 1 court would ensure that IJs are independent from political interference as they are currently under the purview of the Attorney General within the Department of Justice.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.