The Defense Department is planning to begin involuntarily activating military lawyers to serve as immigration judges and to represent the government in cases involving detained migrant children, according to recent recruitment emails. This marks the first time such involuntary activation has been explicitly contemplated for immigration judge positions, and creates new procedural and constitutional questions for practitioners.
What changed
Defense Secretary Pete Hegseth has authorized involuntarily activating military lawyers if volunteers are not found for immigration judge positions. The activation is being offered to Marine Corps reserve attorneys to serve at EOIR courts handling asylum claims and removal cases, with two weeks of training at EOIR headquarters in Falls Church, Virginia, followed by the remainder of the six-month appointment at a court in the lawyer’s “home area.”
As of June 2026, EOIR has hired more than 250 immigration judges under the second Trump administration, including nearly 80 military lawyers serving six-month appointments. A June 3 email from Lt. Col. Lucas Kunce also sought volunteer military lawyers to represent the government in cases filed by unaccompanied migrant children held by the HHS Office of Refugee Resettlement under involuntary activation orders.
Why it matters
This is the first time involuntary activation orders have been explicitly contemplated for immigration judges, which raises several practitioner concerns:
Judicial independence and impartiality. Critics argue that involuntary judges present perception problems with respect to impartiality or fairness, with concerns that military lawyers are being seen as a pool of legal resources that can be involuntarily committed to address the administration’s priorities.
Posse Comitatus Act exposure. While it may not violate the law to have a judge serving involuntarily, it is very rare in the military justice system. However, practitioners should monitor ongoing litigation challenging whether active-duty assignments violate the Posse Comitatus Act, which restricts use of the military to execute civilian laws.
Case defensibility. If you represent respondents in cases heard by military lawyers, you should be prepared to raise constitutional and PCA objections on the record, especially if the judge was involuntarily activated. Document the judge’s military status and prior military service in the case file.
Training and expertise gaps. Military lawyers receive only two weeks of EOIR training before hearing complex asylum and deportation cases, which may create appellate issues around due process and the administrative record.
Way forward
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Build a record early: In cases before military judges, place on the record your client’s position that the judge’s involuntary activation and military status may affect impartiality. Document the judge’s background in case materials for appeal.
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Monitor case outcomes: Track dispositions by military judges. If patterns emerge (e.g., consistently higher denial rates), document them for administrative appeals or federal court challenges.
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Flag PCA challenges: Consult with appellate counsel about raising Posse Comitatus Act objections in Matter of and federal court filings, especially if litigation on the issue develops.
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Check with EOIR: Confirm whether a particular judge is a military lawyer detail, and obtain their prior military role or rank (information that may already be in EOIR notice of appearance or biographical materials).
Disclaimer
This article is for informational purposes only and does not constitute legal advice. The information is based on a public announcement by the Department of Defense and reporting by Bloomberg Law. Immigration policy and EOIR procedures change frequently and without notice. Always verify current procedures and policy against official EOIR guidance at www.justice.gov/eoir and consult a licensed immigration attorney before making filing or litigation decisions in your case. The sourced article is available at https://news.bloomberglaw.com/us-law-week/hegseth-moves-to-order-military-lawyers-to-be-immigration-judges.