Trump administration taps Army Reserve and National Guard for temporary immigration judges

The administration wants to bring in as many as 600 military-trained attorneys to help make decisions about which immigrants can stay in the country. Advocates are alarmed by the move to use military lawyers to bolster staffing in the backlogged immigration courts as President Donald Trump's administration ramps up immigration arrests.

Those courts have yearslong waits for hearings, and the number of pending cases has more than doubled in the past four years to 3.4 million.

Both the Army and National Guard said they hope to fill the assignments with volunteers.

“This assignment provides the opportunity to gain judicial experience in a high tempo, nationally significant setting,” an email sent to members of the Army’s Reserve Legal Command stated, adding that locations and other details will be released later.

A notification seeking volunteers sent Sept. 6 to active-duty and reserve National Guard members said “ideal candidates will possess experience in administrative law, immigration law, service as a military judge” or a related field. Applicants should have sound judgment, impartiality and a “suitable temperament for the role,” it said.

The Trump administration increasingly has turned to the military to support its crackdown on illegal immigration. That has included troops patrolling the U.S.-Mexico border, National Guard members being sent into U.S. cities to support immigration enforcement efforts, housing people awaiting deportation on military bases, and using military aircraft to carry out deportations.

Concerns over lack of training

Immigration judges each manage hundreds or thousands of cases, deciding who gets asylum and green cards to stay in the U.S. Their rulings shape both the lives of immigrant families and the success of Trump’s crackdown.

Some immigration and military law experts are concerned the reservists will be put in the job without enough training or experience after more than 100 immigration judges were fired or left.

With only about 600 immigration judges remaining, the Pentagon move would double their ranks. Trump’s sweeping new tax and spending law provided $170 billion for immigration enforcement, including the hiring of 10,000 Immigration and Customs Enforcement employees, but it caps the number of permanent immigration judges at 800.

“They’re letting a lot of experienced judges go, terminating them with no notice, and yet they claim that there’s a shortage so they need to have these military JAG officers step in and take over,” said Margaret Stock, a retired Army lieutenant colonel and immigration lawyer.

Of particular concern, the administration is not requiring experience as an administrative law judge or in immigration law as in the past, she said. Stock has taught seminars on immigration law at West Point but said military lawyers learn only a minimal amount to be able to help fellow service members with things like visas for spouses or children.

“Immigration law is super technical and complicated,” she said. “It’s worse than tax law, and it’s constantly changing. And it has its own terminology, its own rules that don’t make any sense.”

Immigration judges come from a range of legal backgrounds, including the military, the Justice Department, immigration enforcement agencies, and private practice. The government previously required applicants to have seven years' experience before undergoing a lengthy hiring process, then six weeks of training followed by a two-year probation period.

Until now, temporary judges needed 10 years of legal experience in immigration, and were often retired immigration judges, according to the government's rule laying out the new plan.

The Defense Department did not return an email seeking comment. The Executive Office for Immigration Review, which runs the immigration courts, declined to comment. In the rule, the agency wrote that many successful immigration judges had little experience in immigration law before taking the job.

“Immigration law experience is not always a strong predictor of success,” the rule said.

In the military, an attorney is known as a judge advocate general, or JAG. They study at accredited law schools and pass the bar exam before going into a military law program for just over two months. They sometimes work as special assistants to U.S. attorneys and gather evidence to prosecute criminal cases, much like civilian prosecutors do, said Mark Nevitt, a former Navy JAG and associate professor at Emory University School of Law.

“They are some of the greatest lawyers you’ll meet in the national security world,” but this will require they “get up to speed pretty quickly on a complex body of law and then adjudicate matters and claims as a judge,” Nevitt said.

Matt Biggs, president of a federal employee union that represents immigration judges, said tapping lawyers with little or no immigration experience to hear these complex, high-stakes cases will likely do more harm than good.

“It will lead to more appeals of decisions. It will further increase the backlog. It’s going to be an inefficient and costly endeavor,” Biggs said. “It sets a dangerous precedent in this country when it comes to due process protections.”

Gregory Chen of the American Immigration Lawyers Association said the Justice Department is “watering down the qualifications of those it will empower to make life-or-death decisions.”

He also worries the administration will hold too much sway over the temporary hires. The permanent judges are government employees with civil service protections.

Democrats have questioned the plan's legality

Some Democratic senators have warned the Pentagon plan may violate the Posse Comitatus Act, which bans service members from carrying out law enforcement duties, and fear taking away the JAGs could harm the military justice system. They sent a letter to the offices of the top military lawyers for the four services, asking where the roughly 600 lawyers will be coming from and what legal analysis the military has conducted.

A Pentagon memo describing the plan said the appointments should be for no longer than six months. The memo also said the Justice Department would be responsible for ensuring the military lawyers don't violate the Posse Comitatus Act.

If the military lawyers serve entirely under civilian personnel then it could be legal, Nevitt said, but it's unclear.

Some immigrant advocates believe the administration is presuming military lawyers are more likely to deny cases to meet Trump’s deportation goals.

But Greg Rinckey, a former Army lawyer who is now in private practice, said that assumption is wrong.

“They will not rubber stamp because most of us have served as defense counsel,” he said. “We’re not all government hacks.”

A number of his friends who are Army Reserve JAGs have signed up because they are interested in immigration law and want to serve a national need, he said.

“And also it’s a way to put something else on your resume — that you served as a judge.”

Taxin reported from Santa Ana, California. Konstantin Toropin in Washington also contributed.