The Department of Defense has assigned as many as 600 active-duty military members as temporary immigration judges to help address a backlog, following the Trump administration’s termination of about 100 immigration judges nationwide. At least three military service members have begun hearing and deciding cases in Massachusetts immigration courts, and the deployment of active-duty military as judges with the power to deport and jail civilians raises serious constitutional questions.
What changed
Defense Secretary Pete Hegseth approved plans to deploy up to 600 military lawyers to the Department of Justice to serve as temporary immigration judges. Reserve military lawyers are being recruited to serve as temporary immigration judges on Active Duty for Operational Support (ADOS) orders, a program providing temporary active-duty opportunities for those in the Marine Corps Reserve.
The ACLU of Massachusetts is suing the Defense Department for public records about the apparent deployment of active-duty military as temporary immigration judges. The ACLU filed Freedom of Information Act requests in October of 2025 seeking information about the program, but the Department of Defense has not turned over additional public records, including a memorandum of understanding between the DOD and the DOJ about the program.
According to the ACLU of Massachusetts managing attorney Dan McFadden, these are not merely lawyers hired in their civilian capacity but are being activated on active duty orders through the Department of Defense and ordered to operate as temporary immigration judges.
Why it matters
Immigration judges make high-stakes decisions that directly affect your clients’ liberty and legal status. Immigration judges assess whether noncitizens are subject to deportation and eligible for relief, sign deportation orders, and hold bond hearings to determine if a person should be jailed or released as their case proceeds—decisions of exceptional consequence to a person’s liberty, since civil immigration cases often take months or years to complete.
The DOJ has removed prior requirements and now can select any attorney to serve as a temporary immigration judge, including military attorneys with no immigration law experience. This creates multiple risks for your practice:
Lack of specialized expertise: Military lawyers are trained in military law and courts-martial procedure, not immigration law’s complex relief categories, statutory deadlines, and case law.
Constitutional questions: The DOD’s decision to allow active-duty military attorneys to serve as immigration judges could violate the Posse Comitatus Act, which restricts the use of “any part” of the military to “execute the laws” of the United States. These are officers who remain subject to the Uniform Code of Military Justice and the Pentagon chain of command, raising concerns about judicial independence and whether they are truly independent adjudicators or subject to executive control.
Judicial impartiality: The fact that these judges remain on active duty and subject to military command structure may create grounds to challenge their impartiality or independence in individual cases.
Way forward
If you represent a client in immigration court in Massachusetts or nationwide:
- Verify the judge’s status: Request or inquire into whether the adjudicator is a military-deployed attorney. If so, consider filing a motion to recuse or disqualify based on Posse Comitatus Act concerns and lack of judicial independence.
- Preserve appellate record: Document the judge’s military status and any evidence that military protocols or command influence affected the hearing. This creates a strong record for appeal to the Board of Immigration Appeals or federal court review.
- Research ADOS status: The ACLU of Massachusetts filed FOIA requests in October 2025 and may make information public; monitor ACLU Massachusetts for ongoing litigation updates at https://www.aclum.org/.
- Challenge jurisdiction and authority: Consult with counsel experienced in constitutional immigration law about filing amicus support for the ACLU’s ongoing suit or filing your own motions challenging the legal authority for military deployment in civilian adjudication.
Disclaimer
This article is provided by a software company for informational purposes and is not legal advice. Immigration law is complex and evolving, particularly with respect to the deployment of military personnel in adjudicatory roles. You must consult a licensed immigration attorney to understand how this policy may affect your specific case, client situation, or filing strategy. Verify all information against the primary source linked above; policy and practice can change without notice.