Founding Partner Wynne Kelly shares reflections from CLINIC's 2026 Convening panel on removal defense, pretermission, and appellate strategy.
.svg)
.png)
This Summer, I had the privilege of joining Elizabeth Carlson and Corrie Hansen of the Catholic Legal Immigration Network, Inc. (CLINIC), along with Natasha Prince of JFCS-East Bay, for a panel titled "Navigating Challenging Times in Immigration Court" at CLINIC's 2026 Convening in Atlanta, Georgia. The session was a candid, working-level briefing for practitioners (including a significant number of authorized representatives) on how removal defense in particular has shifted over the past year and, hopefully, some guidance on what to do about it.
Immigration courts are operating under conditions not seen before. The panel opened with recent media reporting on the perceived politicization of the immigration court bench: judges dismissed without the protections civil servants ordinarily receive, close monitoring of bond decisions from chief judges' offices, and a new cohort of "deportation judges" hired with little or no immigration law background.
Drawing on my own experience, I spoke about what this pressure looks like from the bench itself. Sitting judges are under intense pressure to complete cases quickly, and the wave of recent firings has had a chilling effect on the remaining judge corps. That pressure comes from different sources in different ways: (1) the Supreme Court's recent decision in Urias-Orellana affords significant deference to an immigration judge's factual findings, which raises the stakes for practitioners to build a clear record at the trial level; (2) a flurry of new Board of Immigration Appeals (BIA) binding precedents that are, in a number of cases, in tension with opinions from the federal circuit courts of appeal in certain jurisdictions; and, (3) in at least one instance, management within the Office of the Chief Immigration Judge appearing to offer outcome-driven guidance on bond determinations (guidance that was later retracted). These are just the challenges we are seeing from the outside and we do not know what else is going on within the agency itself. The composition of the immigration judge corps has shifted as well and reflects a narrower set of experiences and qualifications. Understanding the pressure judges are under helps practitioners re-focus on what is actually within their control: building the evidentiary and factual record as best as possible with the understanding that wins at the trial court may be unlikely. Further, knowing the intricacies of the law may provide opportunities for advocacy when others in the courtroom might not be as familiar. And strategic objections and legal arguments to ensure preservation of appellate issues are now vitally important.
A significant portion of the panel addressed the growing use of pretermission — denying an application for relief without proceeding to a merits hearing. Recent BIA decisions, including Matter of C-A-R-R- and Matter of H-A-A-V-, have dramatically expanded the grounds where an immigration judge may treat an asylum application as legally insufficient and decide it on the papers. The practical response is preparation at the front end: complete every question on the Form I-589, prepare a declaration early even though it is not technically part of the form, and draft the application with enough factual detail to establish harm, nexus, a protected ground, and the government's inability or unwillingness to protect. Where a judge raises a completeness concern, ask for the opportunity to cure it, and preserve every procedural objection for appeal. We also discussed the more recent line of decisions applying Asylum Cooperative Agreements, including Matter of C-I-G-M- & L-V-S-G-, which likewise limits an immigration judge's authority to hold a full hearing before removal to a third country. Advocates should be prepared to address these cases and have factual and legal arguments explaining why they don't apply in your clients' circumstances.
I closed the substantive portion of the panel with a discussion of appellate strategy and playing the long game under difficult circumstances at the trial court level. The single most important habit a practitioner can develop is building a robust evidentiary and legal record at the trial level: under Matter of J-Y-C- and Matter of W-Y-C- & H-O-B-, the Board generally will not consider an argument, or a particular social group formulation, raised for the first time on appeal. We also discussed the current state of BIA appellate procedure following the partial invalidation of the interim final rule on appeals, the practical realities of standards of review, and recent BIA decisions that seem to show a willingness to find clear error in grants of relief that would have been unremarkable a few years ago, and the continuing, though narrowing, availability of Chevron-free review in the courts of appeals after Loper Bright.
CLINIC continues to track these developments closely and provide its stakeholders with useful resources, including through its Immigration Enforcement Tracker documenting unlawful enforcement activity nationwide, and its practice advisories on administrative closure, termination, and bond. I am grateful to have been part of this convening and to continue learning alongside colleagues doing critically important work under unprecedented conditions.
Emeriti Law is available to consult with practitioners navigating these issues, including through our Immigration Law Training & Mentoring, which offers training, mentoring, and case coaching from experts.
.png)
