Why Military Lawyers Should Not Serve as Immigration Judges

The Pentagon’s decision to temporarily assign military lawyers to serve as immigration judges has drawn sharp criticism from legal experts and former adjudicators, who say the plan risks harming due process in a court system already under strain. The authorization, which defense officials say could involve up to 600 Judge Advocate General officers, aims to respond to a crushing immigration court backlog now estimated at about 3.5 million cases. But critics argue that most military lawyers lack the deep immigration law training needed to fairly decide complex cases that can carry life-or-death consequences, and warn the move could undermine trust in the courts and trigger fresh legal challenges.

Qualifications, training, and role differences

Concerns center on whether military attorneys—trained primarily in military justice, operational law, and administrative matters—can act as neutral immigration judges after receiving only minimal exposure to immigration law in JAG school.

• Experts note many JAG officers receive only one to two hours of instruction on immigration topics during initial training, far less than the extensive preparation given to permanent immigration judges employed by the Department of Justice’s Executive Office for Immigration Review (EOIR).
• The Air Force has acknowledged that immigration experience is “desirable but not required” for these temporary assignments, raising questions about the scope and depth of any crash courses these temporary judges might receive before handling high-stakes hearings.

The standards for permanent immigration judges are stringent:

• Must have a law degree and active bar membership
• Demonstrate years of post-licensure litigation or adjudication work, often with specialized immigration experience
• Complete robust EOIR training, mentorship, and ongoing professional development before presiding alone

Opponents warn that parachuting in military lawyers for temporary service risks inconsistent decision-making, uneven case preparation, and potential legal malpractice if judges misunderstand statutes, regulations, or binding case law. The stakes are especially high in asylum and removal cases, which require seasoned expertise on credibility findings, complex legal tests, and country conditions evidence.

Statutory and perception concerns

Legal scholars and former immigration judges point to statutory limits on military involvement in civilian matters, suggesting the plan could brush up against the spirit, if not the letter, of the Posse Comitatus Act, which restricts the use of the armed forces in domestic law enforcement.

• Although immigration courts sit within a civil administrative system rather than Article III federal courts, critics say embedding uniformed attorneys into a civilian adjudication role risks turning the courtroom into an extension of enforcement rather than a neutral forum.
• They argue the shift could pressure proceedings toward speed over fairness, undermining due process, judicial independence, and the appearance of impartiality that is central to legitimate adjudication.

The risk is not only legal error but the appearance of bias—an outcome that can erode public confidence in the courts.

Practical consequences and appeals risk

Former adjudicators warn that any near-term gains in hearing volume could be offset by rising remand rates, where appeals courts send cases back due to procedural or legal errors.

• Immigration law contains detailed statutory cross-references and evolving Board of Immigration Appeals decisions; unfamiliar judges may miss key issues, misapply burdens of proof, or mishandle credibility assessments.
• Such missteps often land in federal courts, where judges may find the agency failed to give a full and fair hearing—creating additional costs and delays for government and families.

Critics say any spike in appeals caused by hurried or flawed decisions would clog the system further, defeating the goal of speed.

Supporters’ arguments and opposing views

Supporters of the Pentagon move say the court backlog is a crisis requiring fast, creative steps.

• They point to workforce disruption from mass firings and resignations under President Trump, persistent vacancies, and surging border encounters.
• The Pentagon frames the deployment as a temporary stopgap to increase hearing capacity.

Yet immigration practitioners who represent families and asylum seekers argue that expanding the bench with short-term military appointees could do more harm than good if judges lack deep knowledge of the Immigration and Nationality Act, procedural safeguards, and critical precedents.

• Rushed proceedings can lead to mistaken outcomes, such as denying relief to someone eligible for protection or ordering removal without adequate time to gather evidence.
• Short-term appointees who rotate out after brief tours raise continuity concerns for cases that span months or years.

Impact on vulnerable populations

The immediate impact on migrants could be severe. Advocates stress that children, survivors of trafficking, and people fleeing persecution need judges who understand asylum law, trauma-informed hearings, and country-of-origin research.

• Due process is framed as a legal requirement, not a luxury.
• Rushed decisions can separate families, return people to danger, or send U.S. residents with deep ties abroad without proper legal review.

Defense lawyers also worry about conflicts of interest and the optics of uniformed officers acting as judges in civilian immigration cases, even if acting in a civil capacity. The mere perception of bias can shape how people experience the court and whether they accept outcomes as fair.

Training, oversight, and transparency gaps

According to analysis by VisaVerge.com, the policy has triggered wide concern across the immigration bar, with former judges and lawmakers calling it a radical shift that may worsen courtroom quality rather than improve efficiency.

• Training plans for these temporary assignments remain unclear, leaving open questions about how the government will ensure consistent standards, manage supervision, and handle appeals.
• Critics ask who will mentor the military judges, who will conduct quality reviews, and how these judges will access up-to-date legal resources on asylum, Convention Against Torture protection, and relief tied to family and employment categories.

They fear courtroom practices will vary widely, fostering a patchwork of outcomes that depend more on the assigned judge than on facts and law.

Without clarity on training hours, mentorship, and evaluation metrics, it is difficult for the public to judge whether the plan protects fairness and the rule of law.

Calls for alternative solutions

Officials at EOIR emphasize the need for trained immigration judges to meet rising caseloads. Government materials set out minimum qualifications and professional expectations, including judicial temperament, impartiality, and adherence to precedent.

Critics argue that the government should pursue different measures instead of wide-scale military details:

1. Invest in hiring and retaining permanent judges
2. Expand mentorship and continuing professional development
3. Improve case management and court technology
4. Strengthen access to counsel, since represented respondents are far more likely to present evidence clearly and meet complex filing deadlines

These steps, advocates say, would help courts move faster without sacrificing due process, independence, or the public’s trust.

Institutional and long-term risks

While the Defense Department presents the deployment as temporary, immigration lawyers warn of lasting effects.

• Once the boundary between military and civilian courts shifts, future administrations might reuse the approach during migration spikes or political pressure to speed removals.
• The real risk is that a short-term fix becomes a standing feature, blurring lines between enforcement and adjudication and pressuring judges—civilian or military—to prioritize speed over thoughtful decision-making.

Critics also point to uneven training signals across the services. With the Air Force stating immigration experience is optional, skeptics question whether similar standards apply across branches and how agencies will monitor performance.

• Who will mentor military judges?
• Who will perform quality reviews?
• How will these judges access up-to-date legal resources and precedent?

Without clear answers, critics worry about inconsistent outcomes tied to personnel rather than the law.

Practical harms for families and next steps

For families in the system, inconsistency is personal: a parent may face removal while a child’s case remains pending, or a worker might lose status because a judge misreads a deadline.

• Lawyers report fragile cases collapsing under docket pressures, with hearings advanced on short notice and little time to gather records.
• Adding judges with limited immigration training will likely increase those pressures, not relieve them.

The Justice Department has not released detailed public plans for training or oversight of the temporary assignments. EOIR resources describing immigration judge hiring and qualifications are available on the EOIR website here. Legal groups say transparency about training, mentorship, and evaluation would help the public judge whether the plan protects fairness and the rule of law.

Conclusion: capacity vs. fairness

Pressure is building on Congress and the administration to address the backlog by:

• Investing in permanent hiring
• Modernizing court technology
• Strengthening access to counsel

Those steps, advocates say, would increase capacity without sacrificing due process, independence, or public trust. Whether the Pentagon’s plan proceeds at scale or is narrowed under scrutiny, the debate exposes a central tension in immigration policy: the push to process cases quickly versus the duty to decide them fairly.

With millions of cases pending and families waiting years for answers, courts need capacity—but critics insist that capacity cannot come at the cost of the law’s most basic promises.