Handing the gavel to military lawyers?

Navy veteran Shawn VanDiver worries that an immigration court change could work against thousands of Afghan refugees—many of whom assisted U.S. forces in their home country. VanDiver started AfghanEvac, a nonprofit that assists Afghan refugees, in the wake of the U.S. pullout from Afghanistan in 2021. But he said that many of the Afghans his organization works with fear that the U.S. immigration system is turning against them.

“Look, people are scared, right? People are scared to show up to court,” VanDiver said. “And they’re worried that the long-term impacts to this is going to be that they don’t get to reunify with their families, that they have to go back to Afghanistan. And if those things happen, especially for women, they’re dead. The consequence isn’t like some nebulous thing. It’s death.”

Last week, reports swirled that the U.S. Department of Justice was appointing military lawyers in the U.S. Army Reserve and National Guard to serve as temporary immigration judges. Previous reports had also claimed the DOJ planned to co-opt roughly 600 military lawyers to oversee immigration court proceedings and work through a massive backlog of immigration cases. In August, the DOJ issued a Federal Register announcement changing the rules about who can serve as a temporary immigration judge, stripping many requirements candidates had to meet before they could serve in the role.

Both the Pentagon and the DOJ declined to confirm whether any military lawyers have formally begun serving as immigration judges. Immigrant advocates have roundly criticized the new rule, warning that turning these officers into temporary immigration judges could make immigration court proceedings unfair. But others have argued that military lawyers would serve well as immigration judges and could still provide due process for immigrants during their removal proceedings.

The military lawyers in question are members of the Judge Advocate General’s (JAG) Corps. Their responsibilities include representing or prosecuting military members in military tribunals, representing military members accused of committing crimes, and assisting military members and their families with other legal matters, according to the U.S. Army. All branches of the military—Army, Navy, Marine Corps, Air Force, and Coast Guard—have their own individual JAG Corps officers. Members of the Space Force are represented by the Air Force’s JAG Corps.

VanDiver believes JAG officers serving as immigration judges will increase deportations and be more likely to reject asylum applications.

“I think we’re going to see more families being split up and wrecked. I think it’s not going to be good,” VanDiver said. “I think we’re going to start seeing less justice in the system.”

While JAG Corps officers are accomplished attorneys, they aren’t necessarily experts in immigration law. Before the DOJ’s Federal Register announcement in August, temporary immigration judges had to either have 10 years of experience in immigration law or have previous experience as an immigration judge or member of the Board of Immigration Appeals, which hears challenges to immigration judges’ decisions.

The DOJ announcement argued those requirements were too stringent, noting that permanent immigration judge appointments don’t currently have to meet the same standard. To become a permanent immigration judge, a person need only be a practicing lawyer and receive an appointment to the position from the U.S. attorney general. The DOJ’s recent rule change eliminates any additional qualifications so that the same requirements apply to temporary immigration judges as well.

Andrew Arthur, a former immigration judge and now resident fellow for the Center for Immigration Studies, explained that extensive prior experience isn’t necessary to oversee immigration proceedings. “All you need to do in order to be an immigration judge is to have an understanding of immigration law and to be a lawyer,” he explained.

When Arthur became an immigration judge, he received a week of training on courtroom decorum and pertinent law, he said, adding that JAG officers will receive the same training.

“To give you an idea of how not-complicated it is, you don’t actually need to be an attorney in order to represent a respondent in immigration court,” he said. “There are designated individuals who can do it. A lot of people bring law students in to argue cases, you know, albeit under the supervision of a professor or a teaching assistant.”

Immigration courts have very basic rules for evidence, Arthur said, adding that most of the rulings are very straightforward. “You either entered the United States illegally, or you didn’t, you overstayed your visa, or you didn’t, you committed some criminal acts that would render you deportable, or you didn’t,” he explained.

When it comes to overseeing immigration court hearings, JAG officers may even have an edge over ordinary attorneys, Arthur argued, since their responsibilities involve serving as prosecutor and defense attorney in different cases.

But immigrant advocates say the Trump administration is trying to do more than just put qualified judges into place to help eliminate the roughly 3.5 million case backlog the system has developed.

“Even though it’s a growing backlog in immigration court, the administration has been firing dozens of immigration judges,” noted Jennie Murray, president and CEO of the National Immigration Forum. And it’s been firing those judges, many advocates suspect, because of how they were deciding cases.

“The administration dismissed all of the immigration judges that weren’t deciding cases against immigrants, or that … weren’t doing exactly what the administration told them to do,” said VanDiver of AfghanEvac. “So the confluence of all of these things shows that [the administration is] trying to push people into these decision-making roles who are just going to do whatever the president told them to do.”

JAG officers are in the military, whose commander in chief is President Donald Trump, VanDiver noted. “It seems a little bit imbalanced and not independent and not fair to have active duty military members acting as the sole arbiter, because they have to follow his orders,” he said.

Arthur acknowledged that the administration has recently removed immigration judges from their posts and that some media reports have said those judges’ rulings were more often in favor of the immigrants than the government. “Immigration judges have been relieved of their duties under this administration, but the same thing was true under the last administration, and it was also true under the Obama administration,” Arthur said.

He added that JAG officers will likely be able to make their own, independent decisions since they work in a “non-political branch” of the federal government. And they’re not the final arbiters of an immigrant’s fate, Arthur said.

“They’re not the Supreme Court. And this isn’t the final decision. This is the first decision-maker in this process,” he said. “There are plenty of protections that are built into the system to ensure due process.”

Advocates also worry that involving military members in what essentially amounts to civilian law enforcement actions violates the Posse Comitatus Act of 1878. The law, crafted shortly after the Civil War, established a boundary between the military and law enforcement, prohibiting the federal government from using the military to engage in law enforcement actions unless the Constitution or an act of Congress permits it.

“That’s our historic act that we use as our North Star that’s kept the military out of our domestic law enforcement,” said Murray from the National Immigration Forum. “Bringing JAG lawyers to try immigration cases brings us in tension with the law and with our history on this issue.”

Margy O’Herron, a senior fellow at the Brennan Center for Justice, wrote last month that making temporary immigration judges out of JAG officers would be an “unprecedented” move in the relationship between the military and civilian law enforcement sectors. It’s unclear whether any statute explicitly authorized the maneuver, she said.

Arthur argued the maneuver likely wasn’t illegal. “Immigration adjudications aren’t law enforcement. ... None of these individuals will be wearing their military uniforms. They all have them wear civilian clothes, and they have to wear robes,” he said. “There’s no Posse Comitatus issue here, and there’s been a regulation that’s allowed for the appointment of temporary immigration judges since 2014, so this isn’t even a new idea.”

Even so, many veterans and immigrant advocacy groups aren’t excited about the maneuver, according to Shawn VanDiver.

“A lot of veterans are very upset with how, you know, the things that we fought for were not this. We believe in fairness and justice, and this is neither,” VanDiver said. “We have to recognize that this is serious authoritarian stuff. I think our country’s in real danger. If they’re doing this with immigration judges, what’s next?”