September 30, 2025

Durbin Leads Letter to Bondi Admonishing Trump Administration For Firing Immigration Court Judges, Replacing Them With Military Attorneys

“We are deeply concerned about the legality of this action as well as how it will impact our immigration court system and the immigrant families who rely on it,” the lawmakers wrote in their letter about the authorization of military attorneys to act as immigration judges

WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, along with U.S. Senators Catherine Cortez Masto (D-NV), Alex Padilla (D-CA), and Adam Schiff (D-CA), today sent a letter to Attorney General (AG) Pam Bondi to oppose the Trump Administration’s decision to authorize up to 600 military attorneys to act as immigration judges. The Senators’ letter comes after the Trump Administration has fired dozens of immigration judges without cause, including Assistant Chief Immigration Judge (ACIJ) Jennifer Peyton shortly after she met with Durbin.

“Since the start of the Administration, over 100 immigration judges have either been fired or opted to take a deferred resignation offer (known as a ‘Fork in the Road’ offer), despite the lack of a clear path for managing the existing backlog of 3.5 million cases,” the Senators wrote.

“A White House official stated that assigning military lawyers to adjudicate immigration cases is intended to reduce the existing case backlog. Nothing the Trump Administration has done, however, suggests a genuine commitment to prioritizing immigration case review. The Administration only has worsened the problem by firing immigration judges and compelling others to resign,” the Senators continued. “These trained immigration judges include former prosecutors, veterans, and officials who faithfully served through both Republican and Democratic administrations.”

The Senators emphasized that the Trump Administration is utilizing immigration courts to further its mass deportation scheme by arresting and detaining immigrants as they appear for their hearings.

“Moreover, the Administration could increase the backlog to nearly four million cases by seeking to recalendar thousands of cases that had previously been administratively closed—an apparent attempt to overwhelm the courts and make it harder for immigrants to oppose deportation proceedings. The Administration also has sought to sidestep case review and due process altogether by arresting and detaining immigrants who appear at court in order to expedite their removals without further hearings or legal process,” the Senators wrote.

The Senators stressed that military attorneys do not necessarily have experience or training to serve as immigration judges. Additionally, appointing military attorneys as immigration judges appears to violate the Posse Comitaus Act, which prohibits the use of the U.S. military for domestic law enforcement unless expressly authorized in statute or the Constitution. Further, recruiting military attorneys for these roles threatens judicial independence and impartiality.

“Immigration judges make final, binding, and life-changing decisions on an immigrant’s status, including adjudication of asylum applications and final orders of removal; the effect of these orders involves detention and limitations of personal liberty, sometimes immediately after an order is issued. As such, actions taken by military lawyers acting as interim immigration judges appear to cross the line into civilian law enforcement, which cannot be performed by members of the Armed Forces,” the lawmakers wrote.

“The military apparently has begun its search for volunteers to serve as temporary immigration judges, sending recruitment emails to active-duty officers and reservists. At least one such email explicitly stated immigration experience was not required. Active duty and reserve judge advocates who reviewed these recruitment emails reportedly expressed concern that these temporary judges might be pressured to rubber-stamp deportations in line with White House objectives. These objections underscore serious threats to judicial independence and impartiality—particularly as the military attorneys, many without immigration law experience, would be serving in an unfamiliar adjudicatory role,” the Senators continued their letter.

In an apparent effort to stack immigration courts with judges that support the President’s mass deportation scheme, the Trump Administration has relaxed requirements for temporary immigration judges.

“Following a recent rule change loosening requirements for temporary immigration judges, DOJ can now skirt the normal hiring process. Under the new rule, there is no set training or curriculum for temporary immigration judges, who are slated to receive approximately two weeks of training. Because temporary immigration judges serve renewable terms not to exceed six months, they have limited opportunity to acquire proficiency in immigration law or contribute meaningfully to reducing longstanding backlog,” the Senators wrote.

As the Senators note in their letter, Congress appropriated more than $3.3 billion in funding for DOJ to increase the number of immigration judges and hire additional immigration court staff to address the growing backlog of immigration cases. However, the Trump Administration has instead chosen to add to the backlog of cases by firing more than 100 immigration judges.

“Congress recently passed a partisan reconciliation bill that provides DOJ with more than $3.3 billion, including funding to increase the number of immigration judges and hire additional immigration court staff. This scheme does not contemplate military lawyers standing in the place of immigration judges and being taken away from their duties to advise commanders, service members, and their families when they need it the most. Such appointments directly threaten respondents’ due process rights and the credibility of the immigration court system,” the Senators wrote.

The Senators concluded their letter by calling on the Trump Administration to immediately stop the appointment of military attorneys to immigration court positions. They requested detailed answers about the authority under which the Trump Administration can place military attorneys in these positions and asked for further details about training that would qualify these military attorneys for a position as an immigration judge.

“Given the numerous and serious legal, ethical, and process concerns detailed above, we urge the Administration to reconsider the use of military attorneys as temporary immigration judge,” the Senators concluded.

In August, Durbin sent a letter to AG Bondi admonishing DOJ for the politicized firing of nonpartisan judges as the Trump Administration carries out its mass deportation scheme.

For a PDF copy of the letter is available here.

September 29, 2025

Dear Attorney General Bondi:

We write to address the Trump Administration’s unprecedented decision to authorize up to 600 military attorneys to act as immigration judges.[1] We are deeply concerned about the legality of this action as well as how it will impact our immigration court system and the immigrant families who rely on it. This decision comes on the heels of the Department of Justice (DOJ) firing dozens of immigration judges without cause.[2] Since the start of the Administration, over 100 immigration judges have either been fired or opted to take a deferred resignation offer (known as a “Fork in the Road” offer), despite the lack of a clear path for managing the existing backlog of 3.5 million cases.[3]

A White House official stated that assigning military lawyers to adjudicate immigration cases is intended to reduce the existing case backlog.[4] Nothing the Trump Administration has done, however, suggests a genuine commitment to prioritizing immigration case review. The Administration only has worsened the problem by firing immigration judges and compelling others to resign. The International Federation of Professional and Technical Engineers (IFPTE) estimates the number of immigration judges has fallen to 600,[5] down from 735 judges at the end of FY2024.[6] These trained immigration judges include former prosecutors, veterans, and officials who faithfully served through both Republican and Democratic administrations.[7] Moreover, the Administration could increase the backlog to nearly four million cases by seeking to recalendar thousands of cases that had previously been administratively closed—an apparent attempt to overwhelm the courts and make it harder for immigrants to oppose deportation proceedings.[8] The Administration also has sought to sidestep case review and due process altogether by arresting and detaining immigrants who appear at court in order to expedite their removals without further hearings or legal process.[9]

The use of military attorneys as immigration judges will fundamentally reshape civilian-military relations and also appears to violate the Posse Comitatus Act, which prohibits the use of the U.S. military for domestic law enforcement unless expressly authorized in statute or the Constitution.[10] Immigration judges make final, binding, and life-changing decisions on an immigrant’s status, including adjudication of asylum applications and final orders of removal; the effect of these orders involves detention and limitations of personal liberty, sometimes immediately after an order is issued.[11] As such, actions taken by military lawyers acting as interim immigration judges appear to cross the line into civilian law enforcement, which cannot be performed by members of the Armed Forces.[12]

The military apparently has begun its search for volunteers to serve as temporary immigration judges, sending recruitment emails to active-duty officers and reservists.[13] At least one such email explicitly stated immigration experience was not required.[14] Active duty and reserve judge advocates who reviewed these recruitment emails reportedly expressed concern that these temporary judges might be pressured to rubber-stamp deportations in line with White House objectives.[15] These objections underscore serious threats to judicial independence and impartiality—particularly as the military attorneys, many without immigration law experience, would be serving in an unfamiliar adjudicatory role.[16]

Federal immigration law is a notoriously complex area of law that requires extensive knowledge and experience. The process for hiring immigration judges is a rigorous multi-step endeavor: candidates undergo two rounds of interviews, are appointed by the Attorney General, and initially serve a 24-month temporary term before being considered for conversion to a permanent appointment.[17] Temporary immigration judges have historically been required to have extensive previous immigration or administrative law experience.[18] Following a recent rule change loosening requirements for temporary immigration judges,[19] DOJ can now skirt the normal hiring process. Under the new rule, there is no set training or curriculum for temporary immigration judges,[20] who are slated to receive approximately two weeks of training.[21] Because temporary immigration judges serve renewable terms not to exceed six months,[22] they have limited opportunity to acquire proficiency in immigration law or contribute meaningfully to reducing longstanding backlogs. It is also unclear whether they will have adequate support staff to assist them. In March, IFPTE indicated 85 immigration court professionals had resigned or were retiring, likely exacerbating to the historic backlog.[23]

Furthermore, military attorneys have specialized skills that enable them to provide counsel in practice areas that impact service members and our armed forces. For example, Judge Advocates General are practiced in representing victims during court-martial processes; support a commander’s military decision-making process and conduct; advise commanders and staff on military law; and represent service members, dependents, and retirees in various personnel legal matters.[24] Civilian military lawyers also are experienced in representing military members under the Uniform Code of Military Justice alongside active duty and reserve Judge Advocates General to “enable Soldiers to focus on their mission.”[25] The Administration’s decision to divert these attorneys and their expertise from our Armed Forces could negatively impact our threat readiness, especially if advice and counsel on military operations, law, or procedures are delayed due to their service as interim immigration judges.

Congress recently passed a partisan reconciliation bill that provides DOJ with more than $3.3 billion, including funding to increase the number of immigration judges and hire additional immigration court staff.[26] This scheme does not contemplate military lawyers standing in the place of immigration judges and being taken away from their duties to advise commanders, service members, and their families when they need it the most. Such appointments directly threaten respondents’ due process rights and the credibility of the immigration court system. Immigration judges serve in demanding roles that require expertise and where the stakes could not be higher for respondents, many of whom are seeking protection from life-threatening persecution.

Given the numerous and serious legal, ethical, and process concerns detailed above, we urge the Administration to reconsider the use of military attorneys as temporary immigration judges. We also request that you provide responses, as well as copies of related guidance or memoranda, to the following no later than October 14, 2025:

  1. Under what statutory or regulatory authority is the Executive Office for Immigration Review (EOIR) appointing military attorneys to preside over immigration proceedings?
  2. Has the Office of Legal Counsel analyzed whether the appointments comply with the Posse Comitatus Act and other statutory limits on military involvement in civilian adjudication? How will DOJ ensure compliance with these statutory limitations?
  3. What criteria and processes are being used to select which military attorneys are assigned as immigration judges?
  4. What training will military attorneys serving as temporary immigration judges receive prior to hearing cases, and who will provide this training? How long will the training last and how will it differ from standard training for immigration judges? Please provide any curriculum or training materials for military attorneys.
  5. Will military attorneys be supervised by civilian DOJ personnel during their service or will they continue to report to their military chain of command?
  6. How many support staff will be assigned to assist military attorneys? What plans does DOJ have to ensure an adequate ratio of judge-to-support staff for military attorneys?
  7. What categories of cases will military attorneys adjudicate (e.g., detained dockets, bond hearings)?
  8. Will respondents and their counsel be notified if their case is assigned to a military attorney?
  9. What mechanisms will DOJ employ to evaluate military attorney performance and ensure accountability?
  10. What evaluation has DOJ conducted regarding this initiative’s impact on the immigration court backlog?
  11. If voluntary recruitment of military attorneys is not successful, is DOJ aware of any other methods that will be employed to meet temporary immigration judge recruitment goals?
  12. Is DOJ reimbursing DOD for the military attorneys?

Thank you for your attention to this matter.

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