California Immigration Judge Sues DOJ Alleging Firing Was Politically and Gender Motivated

On a day like any other at the Concord Immigration Court in the San Francisco Bay Area, Judge Kyra Lilien was on the record, mid-hearing, when she received a three-line notice: turn in your laptop and badge and leave immediately [1]. She was less than two weeks from completing her probationary period and earning tenure protections. Her performance reviews for fiscal years 2024 and 2025 gave her the highest possible rating — "satisfactory," the top mark on the scale used by the Executive Office for Immigration Review (EOIR) [1].

On May 5, 2026, Lilien filed a 14-page federal lawsuit against the Department of Justice and Acting Attorney General Todd Blanche, alleging that her termination violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) [2]. She is one of at least 107 immigration judges fired under the Trump administration since January 2025, according to the National Association of Immigration Judges [1] — and her case distills a set of legal and constitutional questions that could reshape the entire federal civil service.

The Lawsuit: Gender, Age, and Political Association

Lilien's complaint alleges she was terminated because she is a woman over 40, because she is fluent in Spanish and has associations with the Hispanic community, and because she is a registered Democrat [2]. The suit names specific policy actions by Sirce Owen, who served as acting EOIR director in early 2025, as evidence of institutional hostility. Owen issued memoranda characterizing immigrant advocacy groups as "extremist leftist organizations" that promote illegal immigration and attempt to undermine immigration courts [1][3].

The filing asserts that judges who were not converted to permanent status or were terminated at the same time as Lilien were "overwhelmingly female" [3]. Lilien's attorney, Kevin L. Owen, stated that the government's position is that "federal employment statutes passed by Congress do not apply to Immigration Judges," effectively claiming the DOJ can discriminate based on sex, national origin, age, or any other protected characteristic [4].

The DOJ's EOIR declined to comment on active litigation [4].

A Pattern Across the Country

Lilien is not alone. At least four other immigration judges have filed similar suits in federal courts in Los Angeles, Chicago, and Cleveland [3]. Former Ohio immigration judge Tania Nemer, who was fired 15 days into Trump's second term despite receiving top performance marks, sued the DOJ in December 2025, alleging her termination was based on her gender, her Lebanese national origin, and her prior run for judicial office as a Democrat [5][6]. Nemer's case is represented by the Washington Litigation Group, a pro-bono firm established in 2025 specifically to challenge second-term Trump administration actions [5].

NPR independently tracked 70 judges who received termination notices between February and October 2025 and analyzed their professional backgrounds. The findings were striking: 44% of fired judges had prior experience in immigrant defense — more than double the share of those with backgrounds exclusively at the Department of Homeland Security [7]. Among judges who were retained, the pattern reversed: those with DHS experience — asylum officers, ICE attorneys — made up the largest share still on the bench [7].

Source: NPR Analysis

Data as of Nov 6, 2025CSV

The DOJ disputed NPR's count, saying it had terminated "fewer than 55 judges," but could not provide verification due to staff furloughs [7]. The Immigration Policy Tracking Project documented terminations in successive waves: 20 judges on February 14, 2025; 8 in April; 15 in July; 19 in September; 9 in December 2025; and 13 in January 2026 [8].

Source: Immigration Policy Tracking Project / NPR

Data as of May 6, 2026CSV

The incoming class of replacement judges — 143 hired during the same period — comprises mostly candidates with backgrounds in federal government work, including EOIR itself and DHS. Twenty-five temporary judges with military backgrounds were among the first new hires; none appeared to have immigrant defense experience [7][8].

The Constitutional Battleground: Are Immigration Judges At-Will Employees?

The legal question at the center of these cases is whether immigration judges are protected by the Civil Service Reform Act — or whether the president can fire them without cause under Article II of the Constitution.

Historically, immigration judges who completed a two-year probationary period were covered by 5 U.S.C. § 7513, which permits removal "only for such cause as will promote the efficiency of the service" [9]. But immigration judges are not Article III judges with life tenure. They are DOJ employees housed within EOIR, an executive branch agency under the Attorney General's supervision.

On March 20, 2026, the Merit Systems Protection Board (MSPB) — the federal body that adjudicates civil service disputes — issued a landmark decision in the case of two judges, Megan Jackler and Brandon Jaroch, who were fired on February 14, 2025. The two-member panel ruled that immigration judges qualify as "inferior officers" under the Appointments Clause because they "administer oaths, receive and evaluate evidence, examine witnesses, issue subpoenas, impose sanctions, and ultimately determine whether an individual may remain in the United States" [9][10].

Because they exercise such significant authority, the MSPB concluded, statutory tenure protections cannot constitutionally limit the president's removal power over them. The board applied what it called the "Perkins/Morrison/Seila Law framework," reasoning that removal protections apply only to inferior officers with "limited duties and no policymaking or administrative authority" [9].

The fired judges appealed to the U.S. Court of Appeals for the Federal Circuit, arguing the MSPB misread Supreme Court precedent. Legal scholars at Lawfare noted that the board's reasoning creates a logical impossibility: an official cannot simultaneously possess authority significant enough to qualify as an officer while having authority so limited that removal protections apply [9]. The scholars warned that if upheld, the ruling could strip tenure protections from thousands of federal employees — FDA reviewers, IRS auditors, EPA scientists, and career attorneys across the government — who exercise comparable discretion [9].

Democratic senators have separately pushed legislation to reinstate the two fired judges and to impose statutory limits on who can serve as an immigration judge, though those bills face long odds in the current Congress [11][12].

The DOJ's Position: Executive Prerogative Over Immigration Policy

The administration's strongest argument is structural. Immigration judges are not neutral arbiters in the way Article III judges are. They sit within the executive branch, their decisions directly implement the administration's immigration enforcement priorities, and the Attorney General has long held the power to certify and reverse individual immigration court decisions [9][13].

The MSPB's ruling explicitly cited "the broad domestic and international implications of immigration adjudication" as a reason the usual civil service framework should not apply [10]. The EEOC, in a related proceeding, wrote that the termination was "a lawful exercise of the Attorney General's authority under Article II of the Constitution, [which] allows the President and heads of departments … to remove inferior officers without cause" [6].

This is not without precedent. Administrations of both parties have historically sought to influence immigration court outcomes through hiring practices, case management directives, and performance quotas. The Trump administration argues it is simply exercising a recognized prerogative more transparently.

Critics counter that there is a difference between policy direction and discriminatory selection. Senator Dick Durbin admonished Attorney General Pam Bondi in a Senate Judiciary Committee statement, calling the firings "politicized" and arguing they undermine the nonpartisan adjudicative function that due process requires [13].

The Legal Road Ahead

For plaintiffs like Lilien and Nemer, the evidentiary challenge is substantial. Political affiliation is not a protected class under Title VII or the ADEA. To prevail, plaintiffs must show that their gender, age, or national origin — not their party registration — was the actual motivating factor in their termination. The correlation between being a registered Democrat and being female or over 40, while suggestive, is not by itself sufficient [14].

Courts apply the McDonnell Douglas burden-shifting framework in Title VII cases: the plaintiff must first establish a prima facie case of discrimination, then the employer offers a legitimate nondiscriminatory reason, and finally the plaintiff must show that reason is pretextual [14]. The absence of any stated cause in most of the termination notices could cut both ways — it deprives the government of an affirmative defense but also leaves plaintiffs without a specific justification to disprove.

Available remedies under Title VII and the ADEA include reinstatement, back pay, compensatory damages for emotional distress, and attorney's fees [14]. Punitive damages are not available against the federal government. Federal employment discrimination suits typically take one to four years to resolve, and success rates against federal employers are generally low — though the volume and apparent pattern of these firings may strengthen class-wide claims [14].

The Federal Circuit appeal of the MSPB ruling could reach the Supreme Court. If the high court adopts the MSPB's reasoning, it would establish that a broad category of federal adjudicators serve at the pleasure of the president, with implications well beyond immigration law.

The Backlog: 120,000 Cases in San Francisco Alone

The practical consequences of the judge purge are already visible. The San Francisco Immigration Court, which had 22 judges in early 2025, was reduced to two by early 2026 — a 91% cut [15]. Its backlog expanded to approximately 120,000 pending cases [15]. On May 3, 2026, the court closed permanently, months ahead of schedule, with EOIR stating the closure was "more cost effective" [15].

Cases from San Francisco are being transferred to the Concord Immigration Court, 28 miles east, which already manages 60,000 cases and must now absorb roughly three times its prior workload [15]. Nationally, the immigration bench has shrunk from about 700 judges to around 600 [8]. The Board of Immigration Appeals lost 13 of its 28 appellate judges [16].

Average wait times nationally have stretched to nearly 900 days — almost two and a half years — from initial filing to final disposition, based on data from January 2026 [16]. The BIA's backlog hit an all-time high of nearly 220,000 cases by the end of 2025 [16]. In February 2026, a new regulation required the BIA to automatically dismiss appealed cases without full review unless a majority of its permanent members agree to accept the case within 10 days — effectively blocking nearly all appeals [16].

Bill Ong Hing, a University of San Francisco law professor, characterized the San Francisco closure as "symbolic of the Trump administration's efforts to close off access to asylum seekers" but predicted the qualitative effect on case outcomes would be "negligible" given the systemic pressures already in place [15].

Immigration attorneys and advocacy groups disagree, arguing that the remaining judges will be forced to rush through dockets, increasing errors, appeals, and ultimately further delays. Communities with large immigrant populations in the Bay Area, New York City — where eight judges were fired in a single December day [8] — and other affected jurisdictions face the most acute impact.

What Comes Next

The Lilien lawsuit, the Nemer case, the Federal Circuit appeal of the MSPB ruling, and pending additional suits from at least four more judges [3] represent converging legal challenges to the administration's assertion of at-will removal power over immigration judges. The outcomes will determine not only whether these specific judges get their jobs back, but whether the executive branch can reshape an adjudicative body by selecting which judges to keep based on characteristics that correlate — or, plaintiffs allege, do more than correlate — with protected categories like gender and age.

The constitutional question is narrow but consequential: can Congress protect federal adjudicators from political removal, or does the president's Article II authority override those protections when the adjudicators exercise significant discretion? The MSPB says no. The fired judges say yes. The Federal Circuit, and likely the Supreme Court, will have the final word.