The American Immigration Council is a non-profit, non-partisan organization. This week, the Department of Defense (DOD) approved sending up to 600 military lawyers to serve as temporary immigration judges—which would double the total number of immigration judges at the Department of Justice. This is yet another example of the Trump administration diverting military resources away from national security and instead toward its mass deportation agenda.
Temporary immigration judges are meant to support, not supplant, permanent immigration judges and are only allowed to serve 6-month renewable terms. The DOD’s decision comes days after the DOJ—which oversees the immigration court system—significantly watered down the requirements to serve as a temporary immigration judge.
What Recent Policy Changes Have Paved the Way for Military Lawyers to Serve as Immigration Judges?
On August 28, the DOJ published a final rule that eliminated certain requirements to serve as a temporary immigration judge. Previously, to be a temporary judge, a candidate must have served (1) as a former immigration judge or appellate immigration judge, (2) as an administrative judge within another executive branch agency, or (3) as a DOJ attorney with at least 10 years of immigration law experience.
The Trump administration removed those requirements and now the DOJ can select any attorney to serve as a temporary immigration judge, including military attorneys and attorneys from the private sector with no immigration experience.
The Trump administration claims that more immigration judges are necessary to address the immigration court backlog. But in the past seven months, the Trump administration itself has fired or laid off more than 100 permanent immigration judges—taking the DOJ from a high of 735 judges at the end of FY 2024, to about 600 now.
What Harms Could Result From Reassigning Military Lawyers to Serve as Immigration Judges?
Temporary immigration judges could be more susceptible to political influence than permanent judges. Several recently fired immigration judges have stated that DOJ is telling them how to make decisions in a case, and the Trump administration has terminated judges for not aligning with its mass deportation goals. Given that temporary immigration judges only serve for 6-month renewable terms and are subject to review before any renewal is made, the Trump administration could easily choose to keep only those judges that have ruled the way the administration wants.
Training alone won’t address the problems with appointing unqualified attorneys as temporary immigration judges. The DOJ states in its final rule that temporary immigration judges will be subject to the “same” training as permanent hires, but that’s not enough. Permanent immigration judges undergo a rigorous training curriculum, which includes at least one year of mentorship with an experienced immigration judge. But the immigration system is complex and becoming more complex by the day. Given the short 6-month terms, temporary immigration judges won’t have time to become experts in immigration law.
This diversion of military lawyers further undermines due process. Reassigning military lawyers who lack experience and understanding in immigration law to serve as immigration adjudicators further blurs the line between independent administrative courts and presidential policies. It increases the risk that people facing life-altering consequences of detention and deportation will be deprived of the little due process they are entitled to in immigration proceedings.
What To Look for as Immigration Courts Start Turning to Military Lawyers for Adjudications?
First, lawyers are still examining the legality of this new decision which may result in litigation. The DOD’s decision to allow active-duty military attorneys to serve as immigration judges could violate the Posse Comitatus Act, which restricts the use of “any part” of the military to “execute the laws” of the United States.
Second, Congress could improve its oversight of the hiring practices of immigration judges given this new workforce for immigration adjudications. Since 2019, Congress has used the appropriations process to monitor hiring practices of immigration judges, but advocates have proposed strengthening this oversight.
Finally, Congress should ensure that any future reform of the U.S. immigration system includes protections against the politicization of immigration courts we are currently experiencing.
