Immigration judges sue over Trump admin ban on their public speech, writing

The union representing immigration judges, the National Association of Immigration Judges, filed a lawsuit Wednesday, challenging a policy imposed by the Trump administration in January that blocks them from speaking or writing publicly about any topic. 

The lawsuit is yet another salvo in an increasing fight between immigration judges and the Justice Department in recent years, as the administration increasingly pushes for control over the nation's immigration courts, laying down new quotas, reassigning judges to prioritize asylum cases, and restricting judges' ability to close cases. 

Unlike other federal judges who are part of an independent judiciary, immigration judges are employees of the Executive Office for Immigration Review, the Justice Department agency charged with running the nation's immigration courts. Advocates have long complained that this creates conflicts of interest because the Justice Department is also the agency responsible for prosecuting criminal immigration cases in federal courts. 

In the lawsuit, filed by the Knight First Amendment Institute based at Columbia University, NAIJ argued that the policy imposes an unconstitutional prior restraint on the nation's 440 immigration judges who want to speak or write publicly, no matter the topic, audience or venue, violating both their 1st And 5th Amendment rights. 

"The policy applies regardless of what immigration judges plan to speak about, their intended audience, or the forum in which they wish to share their views. Judges who violate the policy face a range of disciplinary sanctions, including reprimand, suspension, and even removal from the federal service," the lawsuit stated. 

The lawsuit, which calls for preliminary injunction against the policy, was filed in Virginia against Trump administration officials, including James R. McHenry, the head of EOIR, and Attorney General William Barr.

"NAIJ is likely to succeed on the merits of its 1st and 5th Amendment claims; absent a preliminary injunction, immigration judges will continue to suffer the irreparable injury of being silenced during a time of extraordinary public interest in immigration law and policy; and the balance of equities and the public interest favor an injunction," the lawsuit read. 

"Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society," said Judge A. Ashley Tabaddor, president of the National Association of Immigration Judges. "This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process." 

"We are in the midst of an urgent public debate about immigration reform in this country and some of the most crucial voices in that debate are being silenced," said Ramya Krishnan, staff attorney at the Knight First Amendment Institute. "Immigration judges have unique insight into the immigration system, but this policy prevents them from sharing that insight without facing the possibility of disciplinary action or even losing their jobs."

In September 2017, McHenry issued a policy that required judges to seek pre-approval from EOIR if they wanted to speak at public events in their personal capacities, and not as representatives of the federal agency. 

However, in January of this year, McHenry implemented an even more restrictive policy, telling judges that they are categorically prohibited from speaking about immigration law or policy, or about EOIR's own programs or policies. Judges could speak about other topics, but only if they received McHenry's approval, keeping judges from both public speaking, as well as talking to the media. 

This has not only kept judges from speaking about what the lawsuit called "sweeping changes to the immigration court system," but also about how COVID-19, the novel coronavirus, has affected the nation's immigration courts and detained immigrants. As the lawsuit noted, "despite repeated calls that they be temporarily closed, nearly all of the nation's 69 immigration courts and adjudication centers have remained open for proceedings involving detained immigrants." 

The Trump administration has continuously pursued policies to limit immigration into the United States, and has often restricted immigration judges from making decisions that might allow some asylum seekers to remain in the country. At the same time, Trump's officials implemented the Migration Protection Policy, a program that has forced asylum seekers back into Mexico to wait for their hearings, including not only Central American migrants, but also Mexicans fleeing their own country. 

"The 2020 Policy imposes a prior restraint in violation of the 1st Amendment," the lawsuit stated. "As the Supreme Court has repeatedly held, people do not surrender their free-speech rights when they accept government employment. They retain their rights, as citizens, to speak on matters of public importance, and the government can silence them only if it can show that its interest in doing so outweighs the employees' interests in speaking and the public's interest in hearing what they have to say." 

"The government cannot satisfy this test here," the lawsuit said. "The interests of immigration judges in engaging in the speech restrained by the Policy is substantial, and so is the public's interest in hearing it. There is an ongoing national debate about the wisdom and fairness of recent changes to immigration laws and policies and about the effect of those changes on the immigration court system. Immigration judges have unique insights to contribute to this discussion." 

The policy happened to come within days of NAIJ's push to make immigration judges independent from the Justice Department to become Article 1 judges. On January 17, McHenry implemented the policy, and just 12 days later, Congress held a hearing on the subject. 

As Tabaddor told Congress in January, the nation's immigration courts face a massive backlog of cases, rising to nearly 1.1 million cases that month, and that problem is "not a backlog or lack of funds; it is the structural flaw of the Immigration Court, located within a law enforcement agency, that frustrates the ability to properly address the backlog or the appropriated funds." 

Tabaddor argued that "unless and until the Immigration Court is removed from the DOJ and established as an independent court, we cannot begin to adequately address the immigration crisis we face as a nation." She also told Congress that the structure of immigration courts means that the EOIR operates in "lockstep" with the Department of Homeland Security; that judges are "impinged" by performance requirements, including quotas, which force judges to speed up and deport more people; and that the court is increasingly politicized because McHenry and Barr regularly "interfere" in cases. 

Because of federal labor-law protections, officers of the union like Tabaddor may speak about these issues, but the hundreds of other judges "remain silenced" by the rule, the lawsuit said.

Justice hits union directly

Last year, the Justice Department moved to strip immigration judges of their right to unionize, claiming that NAIJ is no longer a valid union because the judges that it protects are managers who cannot form unions under federal law. This move would undo a 1998 labor agreement, and advocates argued would "strip" the judges's independence from the Justice Department. 

In a statement, Benjamin Johnson, the executive director of the American Immigration Lawyers Association, argued that the move was an "effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority." 

"Ironically, while the petition contends that immigration judges are ‘management officials,’ this Administration has made every effort to limit the judges’ independence, management, and authority – micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas," Johnson said. 

"The Trump administration has taken unprecedented steps to strip immigration judges of judicial independence by limiting their ability to manage their dockets and make informed discretionary decisions," Johnson said.  "As the voice of our nation’s 440 immigration judges, the NAIJ has been a vocal critic of the administration’s assault on the immigration court system and its efforts to deprive hundreds of thousands of immigrants critical due process protections." 

Johnson called on Congress to act, writing that the body "must protect the sanctity of due process, efficiency, and fairness in the court system by exercising its oversight authority over these politically motivated actions of the DOJ."

"Oversight alone is not enough; these actions are only possible because DOJ has total control over the immigration court system," he said. "America can no longer afford to have a system that can be so easily manipulated," he said, added that AILA, along with other immigration advocacy groups called on urges Congress to move immigration judges from the purview of the Justice Department to an independent court. 

The chairman of the House Judiciary Committee, Jerrold Nadler, and the head of the House's subcommittee on immigration and citizenship, Zoe Lofgren, were also critical of the move. 

Nadler and Lofgren noted in a statement that "nearly 20 years ago" the Federal Labor Relations Authority rejected similar arguments from the Justice Department to decertify NAIJ. "The fact that the administration is once again raising similar unfounded arguments makes it clear that DOJ’s actions are blatant retaliation for this opposition and an obvious attempt to shield immigration court operations from public view," he said.