On July 15, 2026, the Department of Justice took an extraordinary step by filing its first-ever application to activate the Alien Terrorist Removal Court (“ATRC”), a specialized Article III federal court that Congress established thirty years ago as an alternative to administrative removal proceedings for cases involving “alien terrorists.” Equally extraordinary was the ATRC’s inaugural order, stating that the government’s initial application “could benefit from the opportunity for more thoughtful consideration” and directing the DOJ to file a supplement.
Given the Trump administration’s politicization of immigration, expansion of non-adversarial expedited removal proceedings, and imposition of harsh tactics and policies, there is ample reason to be skeptical of the motives behind DOJ’s use of this tribunal. However, regardless of motive, the activation of the ATRC could end up being a key step toward positive changes in due process for noncitizens and it may help underscore that the immigration system needs to be reformed.
What is the ATRC?
Congress created the ATRC in 1996 in the Antiterrorism and Effective Death Penalty Act of 1996 and amended its procedures in the Illegal Immigration Reform and Immigrant Responsibility Act months later, both of which focused on national security and immigration enforcement. The ATRC provides for specialized removal proceedings in cases involving potential “alien terrorists” and cases involving national security. The statute requires the Chief Justice of the Supreme Court to publicly designate five district judges to constitute the ATRC. Though the court has never been used, Congress set out a detailed procedure for bringing a case. First, DOJ must file an “application” that is certified by the Attorney General or the Deputy Attorney General and that includes a statement of facts and circumstances to establish probable cause that: the noncitizen “is an alien terrorist,” who is physically present in the U.S., and that removal under ordinary administrative removal proceedings “would pose a risk to the national security of the United States.” One of the five designated judges considers the application in secret – without the noncitizen present or even aware of the proceeding (ex parte) and behind closed doors (in camera). The judge may then consider testimony, argument, and evidence, including classified information, that is “presented under oath or affirmation.” If the judge grants the application, the noncitizen is then provided notice of the proceedings and the ATRC conducts a removal hearing under 8 U.S.C. § 1534, which includes a public hearing. Either the noncitizen or DOJ has the right to appeal both the final decision as well as the ATRC’s handling of classified information to the D.C. Circuit on an expedited basis.
While seemingly limited to specific national security situations, the ATRC could be far-reaching. The statute defines “alien terrorist” by cross-referencing sections of the Immigration and Nationality Act that broadly describe terrorist activities and organizations. The cross-referenced provisions, 8 U.S.C. § 1182(a)(3)(B), (F), include actions obviously related to terrorism such as engaging in terrorist activity and being a representative of a terrorist organization. But the statute also includes actions and associations that could be construed far more broadly, such as being a representative of “a political, social, or other group that endorses or espouses terrorist activity” or being the spouse or child of someone described in the sections relating to terrorist activity if the activity occurred within the last five years. The statute also includes soliciting funds for or membership in an organization defined as a terrorist organization, and providing material support (including housing, communications, and funds) to a terrorist organization.
Although there is some case law surrounding the sections describing terrorist activities and organizations, there is no statutory definition and less case law regarding what may “pose a risk to the national security of the United States.” Courts, including the Supreme Court, have recognized it’s often based on “informed judgment rather than concrete evidence.”
We know very little about the DOJ’s test case. The ATRC, which has never been used before, recently created a website that currently includes the case’s “docket.” From there we know that Chief ATRC Judge Joan N. Ericksen reviewed the first application, held a hearing that included argument but no testimony, and the court “had questions about the nexus that the government alleges between the actions of the respondent and the specific sections and subsections it invokes with respect to those actions.” The judge then ordered the DOJ to supplement its application and “provide any further factual or legal analysis to satisfy its statutory obligations.” The DOJ has now filed a supplement to the application. We have no more information about this case or timeline because the statute requires applications to be filed ex parte and under seal, and the court has no public rules of procedure or precedent to indicate how it will operate.
There is a well-founded concern about the lack of transparency and due process in the ATRC. The statute requires the Chief Judge to create rules for the court, but there are no publicly available rules of procedure. The statute does state that the Federal Rules of Evidence do not apply, but is silent on which other federal rules govern. The Chief Judge should adopt and publish rules of procedure, drawing on those of other specialized courts such as the U.S. Foreign Intelligence Surveillance Court or the U.S. Court of Appeals for the Armed Forces. At a minimum, the rules should:
- Specify how to file cases and documents, and what other federal rules apply to ATRC cases;
- Include the qualifications and security clearances attorneys must have in order to represent noncitizens in the ATRC, and how the panel of special attorneys who can be appointed to review classified information will be selected and used;
- Clarify how notice is provided to noncitizens of the proceedings once an application is approved, how the parties must serve each other with evidence or motions, how far in advance evidence or motions should be filed before the public hearing, and whether statutes such as the Equal Access to Justice Act apply for attorneys to recover fees if the noncitizen prevails in the case;
- And provide guidelines necessary for the judges’ preparation of unclassified summaries and decisions.
In addition to a lack of public rules, there is also no oversight of the ATRC application process; only the presiding judge sees the application. If an application is granted, the noncitizen “shall be given reasonable notice” of “the nature of the charges” and “a general account of the basis for the charges” but the noncitizen never gets to see the application or any of the supporting information. Nor can the noncitizen ever have access to the classified information presented to the judge in the proceedings, and the DOJ may withhold any non-classified evidence from the noncitizen if the Attorney General determines it would disclose classified information. The DOJ can use information obtained from electronic surveillance and unconsented searches. The noncitizen also cannot seek to suppress evidence presented at the removal hearing on the basis that it was unlawfully obtained. And the government need only demonstrate that the noncitizen is an “alien terrorist” by the preponderance of the evidence. This differs from immigration court, where the DHS bears the burden of demonstrating removability by clear and convincing evidence, and the noncitizen must establish eligibility for relief from removal by a preponderance of the evidence.
However, noncitizens placed in ATRC removal proceedings do maintain some meaningful rights. The noncitizen is entitled to counsel, who can be appointed at government expense. The noncitizen can introduce evidence and examine witnesses, and the proceedings must be transcribed. And the noncitizen is entitled to an approved unclassified summary of classified information considered by the judge, although that access can be limited if the disclosure of the summary or the continued presence of the noncitizen in the U.S. “would likely cause serious and irreparable harm to the national security or death or serious bodily injury to any person.” In that case, and only if the respondent is a lawful permanent resident, the classified information could be reviewed and verified by an appointed special attorney. The government may appeal the judge’s classified-information rulings before the case concludes, and if a lawful permanent resident is denied an unclassified summary, any order in the case is automatically reviewed by the D.C. Circuit. At the end of the case, either party may file an expedited appeal of the ATRC’s decision in the D.C. Circuit and from there a petition for a writ of certiorari in the Supreme Court.
Even considering these limited rights and secretive proceedings the ATRC still holds more promise to protect due process than current immigration proceedings.
The U.S. Immigration System Is Failing
For more than a century, the U.S. has processed deportation orders primarily through a civil administrative court system that separates affirmatively filed applications, like visa petitions and some asylum claims, from removal proceedings where the DHS can seek an order of removal through administrative proceedings in immigration court. Either side can appeal an immigration judge’s order to the Board of Immigration Appeals, and the noncitizen can further appeal an adverse order to a federal circuit court of appeals.
The immigration courts have been overburdened for decades, with a backlog that has grown dramatically, most drastically since the COVID-19 pandemic. Adding to the burdens on the system, more than 150 immigration judges have recently left, many involuntarily, only to be replaced by politically motivated judges focusing on deportation rather than due process, raising serious concerns of impartiality, political influence, and the rubber-stamping of administrative policies. Access to hearings has been limited, and there is no public access to most case dockets.
Separately, the administration has increased the use of expedited removal, a summary process designed for noncitizens encountered at an airport or other port of entry checkpoint or within a certain time and distance from the border who have no lawful basis to enter the United States. These noncitizens are not entitled to a full hearing before an immigration court and a DHS officer can summarily order them removed if they do not articulate and establish a credible fear of persecution or torture. There is only very limited opportunity to challenge these orders.
At the same time, the Trump administration has focused on removing as many noncitizens as possible, sometimes to entirely new countries or continents, and even to high-security foreign prisons. The administration continues to target noncitizens based on pro-Palestinian advocacy. DHS’s Immigration and Customs Enforcement has adopted increasingly aggressive tactics, wearing masks that conceal agents’ identities, arresting people at schools and airports, and engaging in lethal force against unarmed victims. Detention facilities are overcrowded, causing concerns about the spread of disease and resulting in death. Some courts have ordered ICE to stop unlawful warrantless arrests, but unfounded traffic stops remain rampant. And ICE’s mandatory detention policies, imposed with the support of the immigration courts, have left federal courts overwhelmed by habeas petitions.
Simply put, the fractured immigration courts, the administration’s push to minimize access to due process, and the politically targeted immigration enforcement have brought the system to a breaking point.
The ATRC May Be Less Concerning Than We Think
Despite the genuine concerns about transparency and due process, the ATRC may end up providing more due process and legitimacy than administrative removal proceedings for three reasons.
I. Federal Judges and Federal Court provide necessary structure and legitimacy.
First, it is significant that the ATRC is a federal court and the judges are Article III judges. Federal judges are appointed and confirmed to lifetime appointments in order to keep them insulated from political pressures. Conversely, immigration judges, including those at the Board of Immigration Appeals, are appointed by the Attorney General, lately with much political influence. Federal judges, particularly those appointed to the ATRC, bring far deeper judicial and legal experience than many of the recently installed immigration judges, who often lack immigration or judicial experience. Federal judges are also far more experienced in statutory analysis than the DHS officers issuing expedited removal orders. In addition, Article III judges are guided by federal case law along with federal rules of procedure, although, as noted above, which ones apply in the ATRC remains to be determined. Immigration judges are bound by federal law, but also by decisions issued by the Attorney General, which have become more political and have been issued at a steady clip during the Trump administration, almost unanimously in favor of the DHS.
The DHS immigration officers who issue expedited removal orders are enforcement personnel, not neutral adjudicators, and recent hires have received minimal training and vetting. These officers are not judges and are typically not lawyers but instead deportation officers hired for the purpose of immigration enforcement. Having a federal judge oversee the ATRC ensures a qualified neutral adjudicator.
Similarly, it is structurally important that the ATRC resides within the judicial branch. Per statute, the prosecuting agency in the ATRC is the DOJ and the Attorney General or Deputy Attorney General have to certify an application before it is filed. At the time the ATRC was created, the Immigration and Naturalization Service, then a component within the DOJ, brought deportation cases in immigration court, which sat and still sits within DOJ’s Executive Office for Immigration Review. Thus, both the litigator and the adjudicator worked for the same executive agency. With the creation of the ATRC, Congress moved the national security cases to a federal court, outside the DOJ. When Congress moved the immigration prosecutors to DHS in the Homeland Security Act of 2002, it retained the DOJ as the litigating agency for national security cases, and, more importantly, retained the ATRC as a federal court, even though it had never been used. In the current political environment it is even more important to retain this structure and have the adjudicator outside of the executive branch.
II. Federal Judges on the ATRC are better positioned to define “alien terrorist” and will be an important backstop in considering what would “pose a risk to national security.”
Second, federal judges are better positioned to rule on the legal questions presented in ATRC proceedings than immigration judges or DHS officers.
Because the statute defines “alien terrorist” very broadly, it is not far-fetched to assume the Trump administration will seek to apply the statute to activity that most would not consider associated with terrorism, including thin allegations of gang affiliation, supporting pro-Palestinian speech, or being a spouse or child of someone loosely affiliated with one of the many expanded groups recently designated as terrorist organizations. We have seen a version of this already in Mahmoud Khalil’s immigration case, in which Secretary of State Marco Rubio prepared a letter announcing without evidentiary support that Khalil’s pro-Palestinian advocacy was adverse to U.S. foreign policy. The Board of Immigration Appeals held that Secretary Rubio’s less-than-two-page letter—referencing only “participation” in “antisemitic protests and disruptive activities”—was dispositive and equivalent to a criminal conviction. If an unsupported letter from the Secretary of State citing First Amendment-protected activity can direct a removal order, there is little reason to doubt that the Attorney General or Board of Immigration Appeals would deem similar speech to constitute association with or support of terrorist activity. The government could even take it further, arguing that providing “material support” or a financial benefit, such as any financial donation, to an organization supporting pro-Palestinian speech constitutes engaging in terrorist activity. It would likewise not be impossible for the Trump administration to use its dangerous rhetoric and targeting of political opponents as a basis for seeking the removal of noncitizen critics.
As another example, the administration could argue that paying a smuggler to reach or cross into the United States constitutes “material support” of a terrorist organization. Recently the administration has designated more cartels and Central American gangs as “terrorist organizations.” Those designations allow the government to impose sanctions and immigration restrictions, but they also open the door to allow the government to argue that providing any funding to an individual who was working on behalf of cartels can constitute material support of a terrorist organization. Even if it is illegal, paying someone to accompany a noncitizen escaping persecution should not constitute engaging in terrorist activity.
It is critical to bring in a non-political federal judge—with far more experience construing statutes and national security issues—to serve as a neutral check and define legitimate boundaries on who qualifies as an “alien terrorist.” If this first test case is in fact political, the established system should preclude it from getting past the application stage.
III. There are non-nefarious reasons to use the ATRC.
Third, we can only speculate why the DOJ would activate the ATRC, particularly when it has both molded the immigration courts to rubber stamp all of its policy positions and emboldened DHS enforcement officers to act with impunity. There are certainly reasons to be concerned. Yet there may also be valid reasons for the DOJ to use the ATRC. As Chief Judge James Boasberg of the U.S. District Court for the District of Columbia noted in addressing the administration’s invocation of the Alien Enemies Act, the ATRC was designed to handle national security concerns. If the inaugural case genuinely turns on classified information and national security, the ATRC is the proper forum.
Immigration courts, in contrast, were not designed to handle such concerns and it would be understandable for the intelligence community to be hesitant to present classified information to immigration judges. Although immigration judges can consider the applicability of terrorism-related provisions in assessing eligibility for relief (as it is a bar to almost all forms of relief from removal), evaluating national security and terrorism-related issues are not commonplace in immigration court. Immigration judges receive minimal training, primarily classroom lessons on the aspects immigration law that make up the majority of their cases and courtroom observation to learn how to conduct immigration hearings. It would be reasonable for the intelligence community to be concerned with giving politicized immigration judges access to certain classified information. In creating the ATRC, Congress anticipated there would be cases and issues so sensitive as to warrant a specialized court. If a noncitizen truly poses a risk to the national security of the United States, specialized proceedings are warranted.
There are also understandable logistical concerns. Immigration courts are able to receive and consider classified information—there are procedures in place for the use of classified information in immigration court that were updated in 2024 and then again in 2025—but immigration courts’ ability to handle classified information is fairly untested because until 2024 DHS was only authorized to present classified information in very limited circumstances. The number of personnel authorized to handle and consider classified information in immigration court is restricted to certain administrative officials, supervisory immigration judges, and few attorney advisors, and there has been enormous turnover in employees at EOIR in the last 18 months. Also, immigration cases are handled in the court where the noncitizen lives or is held in ICE custody. With most federal intelligence agencies headquartered near Washington D.C., the DOJ could certainly prefer the certainty of ATRC proceedings being conducted in federal court in Washington D.C., regardless of where the noncitizen is located.
Thus, notwithstanding the administration’s aggressive immigration agenda, it is possible that the inaugural case involves an actual, not political, terrorist and the use of administrative removal proceedings truly would pose a risk to the national security of the United States. If that is the case, the ATRC’s secrecy serves the legitimate purpose Congress intended rather than a political one. The court’s due-process shortcomings remain real — but they must be measured against the system a noncitizen would otherwise face, and in 2026 that baseline is an immigration court stripped of independence and an expedited removal process with almost no process at all.
Even with Limited Due Process, the ATRC May Prove More Functional, Highlighting the Need For Reform
Even considering the concerns with transparency and due process, a small ATRC could demonstrate what a depoliticized removal system looks like in practice. Prosecutors would represent the United States, not an administration. Judges would be appointed, properly trained, neutral adjudicators who are not constrained by administrative policies and the need to report to political appointees. Politically motivated agency precedent would not be binding. And there would be more transparency, including public hearings and public access to a case docket. One need not presume honorable motives to see the opportunity: this test case could highlight the flaws in the current system, model a more functional one, and demonstrate that meaningful reform is necessary.
