Jason A. Cade (University of Georgia School of Law) has posted Welcome to the Trump Administration’s Board of Immigration Appeals. The Immigrant Always Loses., forthcoming in Yale Law Journal Forum (2026), on SSRN. Here is the abstract:
Volume 29 of the Board of Immigration Appeals’ precedential decisions is not a collection of independent legal judgments. It is a project. The Trump administration has used the Attorney General’s self-referral power and a reconstituted, ideologically aligned Board to issue approximately 89 precedential decisions, at more than three times the historical pace, in its first fourteen months. The goal is to engineer a body of precedents that reliably produces one result: removal. This Article organizes this body of decisions into four primary categories: (1) narrowing relief for noncitizens alleging persecution; (2) accelerating the removal of vulnerable persons—including crime victims and abused children—who are on congressionally authorized pathways to status; (3) expanding mandatory detention while narrowing discretionary release; and (4) maximizing the immigration consequences of criminal history. An emerging fifth category reveals a Board that weaponizes its own procedural delays against the litigants whose claims it has sat on for years. A parallel set of rule changes—most recently an interim final rule that a federal court partially vacated in early March—has sought to insulate most deportation orders from any meaningful appellate review. The Article identifies three implications of this project for federal courts. First, Loper Bright‘s elimination of Chevron deference, combined with the Board’s institutional redesign and the uniformity of its outcomes, undermines any claim to persuasive weight, and many of the Board’s decisions should not survive de novo statutory review. Second, the exhaustion doctrine’s justifications collapse when the administrative body to be exhausted has been rebuilt to foreordain a result. Third, the Board’s selective deployment of the civil/criminal distinction, invoking it to deny protections when it benefits the government, and to exclude favorable criminal law developments when it benefits the noncitizen, is itself a doctrinal choice that post-Loper Bright courts should examine without deference, as it has invariably cut against the noncitizen.
Recommended.
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