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Immigration judges take free speech case to 4th Circuit

A three-judge panel of the Fourth Circuit heard arguments Tuesday over a Trump-era rule that immigration judges say continues to violate their freedom to speak out about government policies on their own time. 

Immigration judges challenged a policy requiring a sub-agency of the U.S. Justice Department, the Executive Office of Immigration Review, to preapprove judges’ requests to express their opinions on immigration policies and other matters through published writing or speaking at public events in their personal capacities.

The National Association of Immigration Judges, a union representing nearly 500 immigration judges, filed the federal lawsuit in the Eastern District of Virginia. Seeking a preliminary injunction to block the policy, the NAIJ asserted that the policy was vague and violated the First Amendment right of immigration judges to speak publicly in their personal capacities about important issues and concerns. 

Senior U.S. District Judge Liam O'Grady, a George W. Bush appointee, denied the union's request for an injunction in August 2020, finding that the court was divested of jurisdiction over the constitutional claims under the Federal Service Labor-Management Relations Statute. That ruling prompted the NAIJ's appeal to the Richmond-based Fourth Circuit.

“This case is about a sweeping prior restraint on the speech of federal immigration judges. For over two years now, the agency has banned judges from speaking as private citizens about immigration law or policy or about the court system they administer,” said attorney Ramya Krishnan of the Knight First Amendment Institute, who represented NAIJ during oral arguments on Tuesday. 

The policy emerged as many immigration judges attempted to speak out against certain policies created under the Trump administration. 

Unlike federal judges, immigration judges operate under the Justice Department. 

Lawyers for the Justice Department argue the whole case is moot because President Joe Biden replaced the controversial policy with new language last year. 

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But Krishnan told the three-judge panel the new policy imposes a prior restraint on speech in exactly the same way as the previous one.

“While it's true the policy purports to eliminate a pre-approval requirement for personal capacity speech unrelated to an employee's official duties, it contains broad exceptions that effectively swallow this rule,” she said.

The attorney specifically referred to language in the new policy that allows the Justice Department to “direct employees.”

U.S. Circuit Judge Toby Jay Heytens, who was recently appointed by Biden, challenged Krishnan’s argument.

“When I hear the words, things like ‘direct employees’ that, to me, covers things like what time my law clerks have to come to work and what they have to wear and what order they should do their assignments in,” Heytens said. “That doesn’t strike me as covering my ability to dictate their ability to speak as private citizens away from their workplace.”

He asked Krishnan to support her view that the agency’s ability to direct employees includes the ability to “prohibit them from doing things on their own time.”

She responded that the ability to direct or supervise employees has been interpreted broadly in case law, meaning the new policy could still be interpreted to apply to personal speech.

“Because our Fifth Amendment claim essentially boils down to the failure of the policy to meaningfully cabin the discretion of the agency in approving or denying requests by judges to engage in speech, the discretion is unlimited,” Krishnan said. 

“Shouldn’t we simply vacate the [district court] order, send it back and let the case proceed, as the judge wants?” asked U.S. Circuit Judge J. Harvie Wilkinson, a Ronald Reagan appointee.

While the district court denied the union’s injunction request based on a lack of jurisdiction, Krishnan said, its ruling did not address the actual text of the contested policy.

“The agency is statutorily prohibited from bargaining over the policy’s substance, because the policy involves the exercise of a reserved management right,” Krishnan said. 

Justice Department attorney Jennifer L. Utrecht said a lot has changed over the past year while the appeal was pending.

“The dramatically changed circumstances of this case warrant either a dismissal for mootness or at the very least an affirmance and a remand to the district court,” Utrecht told the panel. 

U.S. Circuit Judge Paul Niemeyer, a George H. W. Bush appointee, interjected to add that the case would likely be dismissed if it was remanded to the district court. 

“The district court was only addressing a challenge to the 2020 policy and the circumstances that existed at the time,” the judge noted, clarifying that the Biden-era policy is different. 

The Fourth Circuit judges did not indicate when they would issue a ruling.

Complicating the panel’s decision, the fate of the union itself is pending. 

Amid the Trump administration’s effort to overhaul immigration rules, the Department of Justice asked the Federal Labor Relations Authority in 2019 to decertify the union. The department argued the immigration judges are not permitted to unionize because they are technically considered to be managerial employees. The FLRA sided with the Justice Department, agreeing to dissolve the union. 

On Friday, the FLRA denied the union’s motion to reconsider the order, finding that immigration judges are categorized as managers. 

Union leaders are pushing for the immigration court system to become independent. They contend that the current structure in which immigration judges must answer to the U.S. attorney general—a political figure—could create conflicts of interest in a profession that should function with neutrality. 

Last week, Democrats on the House Judiciary Committee’s immigration panel heard testimony over the effort to dislodge immigration court from the purview of the Justice Department. Many Democratic lawmakers expressed hope that a restructuring of the immigration system could help mitigate the backlog of cases that continues to clog the courts.

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