Immigration Judges’ Union Sues Department of Justice for Gag Rule

Source: G.U. Free Speech Project
Type: news-reporting
Author: Julianne Licamele

Source Text

On July 1, 2020, the Knight First Amendment Institute filed a lawsuit in federal court on behalf of the National Association of Immigration Judges to challenge a policy preventing immigration judges from speaking publicly about policy or law. The lawsuit argues that the rule, introduced in 2017 and tightened in 2020 by the Department of Justice Executive Office for Immigration Review, violates the First and Fifth Amendments.

KEY PLAYERS
The Department of Justice Executive Office for Immigration Review (DOJ EOIR) manages the immigration court system, operating under Attorney General William Barr. 

EOIR Director James McHenry was appointed by former Attorney General Jeff Sessions. He is the defendant listed on the lawsuit. 

The National Association of Immigration Judges (NAIJ), founded in 1971, is the recognized representative for collective bargaining for all U.S. immigration judges. Representatives of the association are the only immigration judges exempt from the gag rule, including Judge Samuel B. Cole, director of communications and Judge A. Ashley Tabaddor, the president. Immigration judges do not have lifetime appointments like most federal judges but are employees of the U.S. Department of Justice; many complain they work under difficult conditions, often handling dozens of “trials” in a single day.

The Knight First Amendment Institute, at Columbia University, is dedicated to defending Free Speech and press using litigation, research, and public education.

FURTHER DETAILS
Prior to 2017, immigration judges’ public statements were subject to EOIR approval, Cole said in an interview with Borderless Magazine, but they were routinely granted permission to comment on all matters of public concern. Under the new policy, immigration judges must receive prior permission from the EOIR before speaking or writing on any policy or law, even in a personal capacity. 

“Because requests for speaking are now routinely denied, many judges have simply stopped speaking publicly — and the public has stopped asking,” Tabbador and Cole wrote in a piece for the Miami Herald. Requests to speak during panels, law school classes, and even seventh-grade history classes have all been denied, court documents reveal. In an editorial for Slate, three law school professors wrote, “A virtual gag rule has been placed on them in the context of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time.” 

The rule was enacted during a turbulent time for the immigration court system, when many new policies from the Trump administration impacted the courts dramatically, reflecting the hardline anti-immigration stance and rhetoric the administration has promoted. These policies include quotas for judges, limiting judges’ ability to close cases, and reassigning them to new jurisdictions to help deal with a backlog of asylum cases, according to the Texas Tribune. The coronavirus pandemic has added another layer of controversy to Trump’s immigration policies, as reports of the virus running through immigrant detention centers surfaced. “There is significant public interest in these changes and in their effects on the independence of immigration judges and the process afforded migrants who appear before them,” the lawsuit states. “Immigration judges are uniquely positioned to inform the public on these issues.” Additionally, immigration judges are barred from speaking about the effects of COVID-19 on the immigration court system, which has experienced many delays during the pandemic. 

In the Borderless interview, Cole said immigration judges want the same rights as every other judge, but the specific status of the immigration court system, housed in the executive rather than the judicial branch of the government, leaves them subject to new policies every time an administration changes.

OUTCOME

Union survives the DOJ’s attempt to silence it>
Last year, the DOJ called upon the Federal Labor Relations Authority (FLRA) to decertify the NAIJ, even though the FLRA had previously upheld its status as a union in 2000, according to Government Executive. Such a decertification would have silenced the only representatives from the union with the ability to speak freely. When reviewing the case in late July, the FLRA confirmed the NAIJ’s union status. 

Federal judge refers case to administrative hearing
In August, U.S. District Judge Liam O’Grady labeled the case a labor dispute and said claims of prior restraint of speech should be heard by the FLRA, not in federal court, according to Law 360. He ruled that the speech policy should be brought up for collective bargaining under the Federal Service Labor-Management Relations Statute (FSLMRS), part of the 1978 Civil Service Act. The statute’s rules govern workplace organization and collective bargaining by government employees. 

NAIJ appeals and awaits decision
O’Grady’s decision is currently under consideration in the U.S. Court of Appeals for the Fourth Circuit. On Oct. 5, 2020, a group of legal scholars and the National Treasury Employees Union each filed an amicus brief in favor of the NAIJ. The briefs argue the FSLMRS does not cover constitutional claims, such as Free Speech, and that relegating the process to an administrative hearing may not succeed and would take too long. They also assert that the process to which O’Grady deferred the case could handle disputes over the steps the EOIR takes when the policy is violated, not the policy itself.

Events Citing This Source

Event	Date	Category
Immigration Judges Barred from Discussing Policy	Jan 2020	Erosion of Democratic Norms

People Mentioned

Person	Role
Donald Trump	45th and 47th President of the United States

Institutions Mentioned

Institution	Description
DOJ	United States Department of Justice
EOIR	Executive Office for Immigration Review, DOJ agency overseeing U.S. immigration courts

Related Sources

Source	Type	Publisher
Knight Institute - Margolin v. National Association of Immigration Judges	news-reporting	Knight Institute
Revised Justice Department Policy Still Silences Immigration Judges	news-reporting	Knight Institute