Labor & Employment Law Daily Wrap Up, AGENCY NEWS—MSPB issues precedential decision concluding that immigration judges are subject to removal without protections, (Mar 24, 2026)

By Brandi O. Brown, J.D.

Two immigration judges removed without pretermination procedures, in decisions reversed by the MSPB administrative judge below, remain locked out of their jobs after the Board’s decision vacating the AJ’s decisions.

In consolidated petitions for review, the Republican-controlled MSPB granted the agency’s petition to review the reversal of the terminations of two assistant chief immigration judges within the Justice Department’s Executive Office for Immigration Review. The two judges, appointed during the Biden administration, were summarily fired by the DOJ soon after Trump took office. They appealed their terminations to the Board and OPM intervened in the appeals. The MSPB administrative judge reversed, ordering that they be reinstated. The agency filed petitions for review, arguing that the AJ erred and OPM again intervened.

Considering whether the Board has authority to consider constitutional challenges as part of its jurisdictional analysis (the AJ had concluded it did not), the Board proclaimed that, “with respect to constitutional challenges that themselves relate to our jurisdiction over certain appeals, we must be able to consider such challenges to determine whether we have jurisdiction over those appeals.”

No protection means no jurisdiction. As such, it addressed the agency’s and OPM’s “specific constitutional challenges in these appeals: whether as applied to the appellants, Article II abrogates the removal protections 5 U.S.C. § 7513 otherwise provides to employees covered under 5 U.S.C. § 7511, and therefore deprives the Board of jurisdiction over adverse actions brought under section 7513(d).” The Board held that “it does.” Specifically, the agency argued that the Board lacks authority to review the Attorney General’s exercise of Article II authority to remove inferior officers such as the immigration judges. The Board agreed.

Subject to at-will removal? For any removal taken pursuant to Article II authority against an individual subject to at-will removal under Perkins/Morrison/Seila Law, the Board elaborated, the Constitution prohibits it from reviewing any aspect of the removal, including whether it was done for the efficiency of the service or whether proper pre-removal procedures were provided, because to do so would impermissibly interfere with the President’s Article II removal authority. Therefore, for any such individual, it necessarily lacks jurisdiction over an appeal of an Article II-based removal.

While under Seila Law the President’s Article II removal authority does not necessarily invalidate removal restrictions for all inferior officers in the executive branch, to determine whether the agency is correct with respect to the appellants, i.e., that they are removable at-will, the Board had to determine whether the appellants qualify as inferior officers under the Constitution and, if they do, whether they are inferior officers with limited duties and no policymaking or administrative authority. If the answer to the second question was yes, then their statutory removal restrictions are constitutionally permissible, and the Board has jurisdiction to review the removal actions. “However, if they have more than limited duties, or some level of policymaking or administrative authority, then the exceptions from Perkins and Morrison do not apply, the restrictions contained within section 7513 cannot be constitutionally applied to them, and we lack jurisdiction to review the agency’s removal actions.”

Like SEC ALJs, Tax Court STJs, but not APJs. Here, the Board found that, like SEC ALJs and Tax Court STJs, the immigration judges qualify as inferior officers. It concluded that they did not meet the Perkins/Morrison/Seila Law exception for inferior officers with only limited duties and no policymaking or administrative authority that would have allowed restrictions on their removal. In a footnote, it also considered United States v. Arthrex, a U.S. Supreme Court decision that allowed administrative patent judges to retain for-cause removal protections because APJ’s decisions are subject to review, explaining that the “limited and conditional review of immigration judge decisions” makes this case distinguishable.

Pursuant to 8 U.S.C. § 1229a(a)(1), the Board explained, immigration judges are charged with making decisions regarding the inadmissibility or deportability of an alien. By regulation, it added, they exercise independent judgment and discretion and can conduct hearings and exercise adjudicative authorities. Their decisions can become the final decisions of the United States if not appealed, the Board added, and even if an alien does appeal, that right to appeal may be limited in scope. “Thus,” the Board concluded, “many circumstances exist where an immigration judge’s decision will remain the final decision of the United States.” “Moreover, an immigration judge’s decisions can have a major impact on a significant area of our nation’s domestic and foreign policy.”

“Thus, the appellants cannot fit within the exception for inferior officers established in Morrison and Perkins, and reaffirmed by Seila Law and Braidwood, and the Constitution requires that they be removable at will.”

“Because we find that the appellants do not meet the requirements necessary to allow removal restrictions for their positions, we find that 5 U.S.C. § 7513 cannot be applied to them, as doing so would unconstitutionally infringe upon the President’s ability to faithfully execute the laws. We therefore must dismiss these appeals for lack of jurisdiction.”

News: AgencyNews PublicEmployees WhiteHouseNews Discharge