Pentagon to Send 600 Lawyers to Serve as ‘Temporary Immigration Judges’

By statute, immigration judges are just lawyers the attorney general appoints to hear removal cases, and on August 28, DOJ published a final rule that permits the appointment of “temporary immigration judges” (TIJs) who will serve 179-day, extendable terms. Five days later, AP reported that Department of Defense (DoD) Secretary Pete Hegseth has approved a plan to send 600 of his lawyers to serve as TIJs. Given the backlog of pending removal cases, it’s time the immigration courts got some relief, but ignore any complaints you may hear about how complex immigration law is or any potential threats this plan may pose to “due process”.

A Historical Perspective on the Backlog

Having been an immigration judge myself, I am intimately familiar with this system.

When I left the bench to return to Capitol Hill in FY 2015, there were 254 immigration judges handling a docket of 659,000 cases — roughly 2,600 cases per immigration judge.

When Donald Trump took office in FY 2017, there were 84 more immigration judges on the bench, and they were handling nearly 896,000 cases — just about 2,650 cases each.

The then-president and his attorneys general (Jeff Sessions, Matt Whittaker, and Bill Barr) prioritized immigration judge hiring, and when Trump left office in FY 2021, the cadre of immigration judges had risen 65 percent to 559.

So far, so good, but the problem was that the immigration court backlog rose by 85 percent during that same period, to more than 1.655 million cases.

Immigration court shutdowns during the Covid-19 pandemic exacerbated the increase, but other factors, including a rush of alien adults travelling illegally with children to take advantage of misguided court decisions (mis)interpreting the Flores settlement agreement, drove the problem.

Then came the Biden administration, with its (illegal) quick-release policies for migrants who entered illegally and weren’t expelled under Title 42.

Most were placed into removal proceedings, and by FY 2024, the immigration court backlog had grown to more than 3.88 million cases — a 135 percent increase in just three years.

I’ll note Biden continued that first Trump-era hiring spree, but still, the 735 immigration judges on the bench at the end of FY 2024 faced average dockets of 5,286 cases each.

Keep in mind also that the backlog would have been even worse had the Biden administration not cooked the books by dismissing, terminating, or closing 700,000 pending cases involving facially removable aliens, a move the House Judiciary Committee termed a “quiet amnesty”.

That may have been good on paper, but it was plainly not in the best interests of the American people.

Impact of the Trump II Border Shutdown

Trump returned to office vowing to shut the border down, and assigned two veteran officials — “border czar” Tom Homan and CBP Commissioner Rodney Scott — to accomplish that task.

And by July, Homan, Scott, and thousands of Border Patrol agents and CBP officers attained “operational control” of the Southwest border, as agency encounters dropped 92 percent compared to December.

That decline in illegal entries took some of the heat off the immigration courts, and by the third quarter of FY 2025, the backlog had declined for the first time in 17 years (since FY 2008) as immigration judges completed more than 588,000 cases while receiving just more than 448,000.

The “One Big Beautiful Bill Act”

The immigration courts have been under-resourced for all 33-plus years that I have been involved in this area, but Congress acted in H.R. 1, the “One Big Beautiful Bill Act” (OBBBA) to address that gap.

In section 100054 of the OBBBA, the Executive Office for Immigration Review (EOIR), the DOJ component that administers the immigration courts, received $3.33 billion designated for the hiring of immigration judges and necessary support staff “to address the backlog of petitions, cases, and removals”.

That appropriation, however, came with an inexplicable restriction in paragraph (1)(B): “Effective November 1, 2028, [EOIR] shall be comprised of not more than 800 immigration judges, along with the necessary support staff.”

I say “inexplicable” because nobody can explain why there’s any cap on immigration judges. If anything, Congress should put a floor on hiring EOIR adjudicators, but for now, that limitation is the law.

“Designation of Temporary Immigration Judges”

As noted above, the backlog has declined in the past nine months, but the average immigration judge must still juggle a docket of more than 5,500 cases — a herculean task given that each can complete, at best, only 1,000 cases per year.

In response, EOIR on August 28 published a final rule in the Federal Register captioned “Designation of Temporary Immigration Judges”. As the office explains, under that rule: “the EOIR Director … with the approval of the Attorney General, may designate or select TIJs, which have the authority of an IJ to adjudicate assigned cases and administer immigration court matters”. (TIJs are not counted toward the inexplicable 800-judge cap in the OBBBA.)

The appointment of TIJs has been permitted by regulation since the Obama administration, but prior to the current rule, the only attorneys eligible were former immigration judges, members of the appellate Board of Immigration Appeals (BIA), ALJs — administrative law judges — from DOJ and other agencies, and DOJ attorneys with at least 10 years of immigration law experience.

That latter requirement really didn’t make any sense, given that full-fledged immigration judges only need seven years of post-bar experience — not 10 — and any lawyer could apply and be appointed, not just one with immigration experience.

The thought in 2014 when that earlier provision took effect was that many TIJs would want to become immigration judges.

But as the rule explains: “EOIR’s experience with its retired adjudicators, only a handful of whom have indicated a willingness to return as either TIJs or rehired annuitants with limited workloads since the 2014 [regulation] was promulgated indicates that pool is insufficient to address its TIJ needs”.

Consequently, the August 28 rule drops both the immigration-law experience requirement and expands TIJ-eligibility to attorneys from other departments — not just DOJ.

“Pentagon Authorizes Up to 600 Military Lawyers to Serve as Temporary Immigration Judges”

Which brings me to the September 2 AP article, headlined “Pentagon authorizes up to 600 military lawyers to serve as temporary immigration judges”.

The outlet reports: “The military will begin sending groups of 150 attorneys — both military and civilians — to the Justice Department ‘as soon as practicable,’ and the military services should have the first round of people identified by next week.’”

Once on the bench, that assignment would boost the current number of immigration judges by about 22 percent, but don’t expect any of them to start hearing cases before late October.

As the August 28 rule notes, DOJ must first approve any would-be TIJs, and once they’re selected, they’ll “receive the same ‘comprehensive, continuing training and support’” that full-time immigration judges already get.

In my case, that meant a week-long course in immigration law and courtroom demeanor, followed by two weeks of in-court experience supervised by a full-time immigration judge.

Trust me — it was more than enough, and attorneys in my class who came in with no immigration-law experience have gone on to have distinguished careers.

“Makes as Much Sense as Having a Cardiologist Do a Hip Replacement”

Nonetheless, AP quoted a critic who complained Defense Department TIJs would “gut[] due process” and that the plan “makes as much sense as having a cardiologist do a hip replacement”.

Spare me. First, though immigration law experts compare the subject to tax law in its complexity, in most cases it’s straightforward and commonsensical.

Aliens enter illegally or they don’t, overstay nonimmigrant visas or they don’t, are telling you the truth about the horrors they faced back home or the relationship they have with their “spouses”, or they aren’t.

By and large, rules of evidence don’t even come into play in immigration court, and when it comes to bond hearings, multiple layers of hearsay and innuendo are fair game.

And if immigration judges — full-time or temporary — have any questions about the law or the facts, they can tell the parties to brief them. When I was an INS trial attorney, I usually hated such requests, but as an immigration judge I thought they were swell — and immensely helpful.

As for “due process”, immigration judges are first adjudicators, not the last. Every alien can have an immigration court decision reviewed by the BIA, and if they aren’t happy there, can ask the local federal circuit court to weigh in — and both tribunals are more than happy to send a wrongly decided case back or reverse a decision.

Even the cariologist/hip surgeon comparison is inapt.

The doctor’s adage “see one, do one, teach one” was coined by Dr. William Stewart Halsted at Johns Hopkins in the late 19th century when he was training young, would-be surgeons. Under the latest rule, TIJs will see many immigration cases — and likely do many under supervision as well — before the training wheels come off.

Moreover, while it’s true that I wouldn’t grab cardiologists from the cath lab and have them cut on me, immigration law isn’t surgery — and if I thought I was having a heart attack, I’d trust an orthopedist to diagnose my symptoms.

Respectfully, there are plenty of Article III, federal court judges with no experience at the outset in the varied areas of the law they are expected to adjudicate. To the best of my knowledge, no Supreme Court justice in history ever practiced immigration law, but they have the final word in interpreting it.

Finally, as the August 28 Federal Register notice notes, “Immigration law experience is not always a strong predictor of success as an” immigration judge; trust me when I tell you from experience, truer words have never been spoken.

Law is law, and immigration law pales in complexity compared to government contracting or military “rules of engagement”, areas in which DoD attorneys already practice. As for “due process”, remember that decisions of immigration judges — permanent or temporary — aren’t final until the appeals run out.