This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
As we’ve repeatedly written, the Trump Administration has a resource scarcity problem – it simply does not have the detention beds and transportation facilities to deport as many migrants as it wishes. Moreover, it does not have enough immigration judges to handle the pending immigration docket, which still has nearly four million pending cases. Recruiting and training new immigration judges takes time. Time is a luxury for the Trump Administration, which senses (we believe) that it has a limited window of opportunity to implement its agenda. So, what to do? The subject of this advertorial is the Administration’s latest idea: combing the Pentagon for lawyers and slotting them into immigration judge roles. For now, the Administration is just relaxing the rules and asking for ‘volunteers.’ But hundreds of military immigration judges may be coming soon to courthouses near you.
First, a brief backgrounder on immigration judges. Immigration Judges are not Article 3 judges, appointed with Senate approval and given life tenure. Instead, Immigration Judges are Article 1 officials – administrative law judges, in DC parlance – who work within the Department of Justice as civil servants. Presidents can (and do) fire or reassign immigration judges; President Trump has been more energetic than most of his predecessors in both hiring and firing.
Presidents of both parties have worked to expand the ranks of immigration judges. Over the past decade, the number almost tripled, from 250 to 735, before the firings and reassignments at the beginning of the current Presidential term pushed the number below 700 again.
700 still isn’t enough. So, the Trump Administration has taken the unusual first step of relaxing the requirements to serve as a temporary immigration judge. Previously, the Department of Justice required a minimum threshold of experience in immigration law; now, that is no longer required. Military lawyers are receiving ‘invitations’ to do six months of TDY as immigration judges.
It is not clear how many military lawyers will accept that invitation. The Trump Administration is considering simply ordering military lawyers – about 700 of them, according to The New York Times – to take up temporary judgeships.
Doubling the immigration judge corps would diminish one major resource constraint for the Trump Administration. However, this maneuver would have severe and foreseeable drawbacks.
First, immigration law is really complicated. The law concerning removability, asylum, and other forms of relief is voluminous, and the mechanics of immigration practice are not intuitive, and the breakneck pace of litigation – two or three trials per day, with dozens of preliminary hearings in a single two-hour block – leaves little room for new judges to learn on the job. Immigration Judges need experience to handle the cases successfully.
Second, Immigration Judges issue decisions, and those decisions are frequently appealed. There is one immigration appeals court for the entire United States. (Yes, this is really true – the Board of Immigration Appeals is located right here in Falls Church, and it has no sister courts.) If the Immigration Courts double their output, it stands to reason that the number of appeals will also double. The backlog at the Board of Immigration Appeals is already substantial. Diminishing the backlog at the immigration courts will do the Trump Administration little good if the removal orders remain pending on appeal at the Board; it will merely transfer the backlog from one docket to another.
It may be that the Administration has plans for the Board of Immigration Appeals, too. If we hear about them, we’ll tell you.
