It was revealed last week that DOJ had notified the National Association of Immigration Judges (NAIJ) — which represents the interests of the 730-plus immigration judges (IJs) — that its members may no longer communicate with the public without DOJ sign-off. That prompted Sen. Chuck Grassley (R-Iowa), a senior member of the Senate Judiciary Committee and no fan of government coverups, to send a letter to Attorney General (AG) Merrick Garland asking about this alleged attempt to stifle IJs’ free-speech rights. Whatever could the Biden administration be trying to hide?
Background on the Immigration Court. By way of background, section 101(b)(4) of the Immigration and Nationality Act (INA) defines the term “immigration judge” in pertinent part as, “an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings”, including removal hearings under section 240 of the INA.
Curiously, I’m unaware of any other reference to the Executive Office for Immigration Review (EOIR) in the INA, but in any event, it’s a DOJ component created in 1983 to adjudicate immigration-related matters, and headed by a director who is neither presidentially appointed nor Senate confirmed.
IJs fall within the jurisdiction of EOIR’s Office of the Chief Immigration Judge (OCIJ), which in turn is headed by a chief immigration judge. That position has been held since April 2023 by Sheila McNulty, a long-time DOJ employee who, like me, began her government service with the former INS.
All of that said, aside from ensuring that IJs show up reasonably on time, don’t abuse their positions, and comply with the INA, case law, regulations, and decorum, traditionally neither the attorney general, nor the EOIR director, nor the chief immigration judge usually has meddled with how the IJs do their business. The emphasis here is on “traditionally”.
NAIJ Decertification. In the interest of full disclosure, I am a former IJ and an erstwhile member of NAIJ. That said, my only reason for joining the union was to protect myself from executive-branch interference in my decision-making, which under the Bush and Obama administrations never actually proved to be an issue.
To be fair, the group is rarely on the same page as any given administration, and in August 2019 the Trump DOJ began an effort to decertify NAIJ. Thereafter, in November 2020, the U.S. Federal Labor Relations Authority (FLRA) issued a decision decertifying NAIJ.
While the Biden administration decided to reverse that Trump decertification effort in December 2021, the FLRA denied NAIJ’s motion to reconsider its earlier determination in January 2022.
Six months later, NAIJ again sought recognition, at which time DOJ asserted that while it “supports employees’ rights to organize” it “is bound by orders issued by agencies and courts”. And that, more or less, is where things stand today.
“DOJ Issues 'Gag Order' on Immigration Judges”. Or that was where things stood, before the news about the recent speech restrictions broke in Government Executive, a staid journal of goings-on in the executive branch, in an article by Eric Katz headlined “DOJ issues 'gag order' on immigration judges”. Katz explained:
The Justice Department is warning one of its employee groups that it can no longer speak publicly without prior agency approval, raising concerns the Biden administration is placing a “gag order” on certain workers despite a promise to be their advocates.
The issue stems from the National Association of Immigration Judges losing its recognition as a union, leading Justice to tell the organization any rights it previously enjoyed as part of a collective bargaining agreement are no longer valid. NAIJ has represented immigration judges for more than 50 years and has never previously faced restrictions on its public testimony.
That information was conveyed to the union by Chief Immigration Judge McNulty, who broke the news to NAIJ in a February e-mail to its leadership in which she noted, as per Katz, that “while those officials may be ‘under the impression’” they can participate “in written and spoken engagements without agency authorization, that was not the case”.
While IJs, like other adjudicators, should consider the need to appear impartial in their public statements, the administration is free to allow them to speak publicly on issues of interest to the community and the nation as a whole, union or not. It apparently chooses not to.
There definitely is a great deal of public interest in the functioning of our immigration system right now, as numerous polls have shown. That includes questions about the current functioning of the immigration-court system, which is currently straining under a docket of some three million cases.
That backlog has more than doubled since FY 2021, the increase nearly all attributable to the millions of Southwest border migrants released into the United States under Biden administration policies that transgress Congress’ detention mandates.
The public may also be interested in finding out about the 159,000-plus aliens who failed to appear in court and were consequently ordered removed in absentia in FY 2023 — an all-time record.
If the public is looking for the facts about those and other issues, they won’t be able to get them from the IJs themselves anymore, apparently.
“Unlawfully Attempting to Prohibit its Employees from Making Legally Protected Disclosures”. That report and a similar one by the Associated Press prompted Grassley to write to AG Garland “concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress”.
The senator specifically asked the AG to “fully review EOIR’s alleged attempt to prevent their employees from communicating with Congress and failure to inform their employees of their Constitutional and statutory rights to make legally protected disclosures to Congress”.
As Grassley explains:
It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall. In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.
That latter reference is to testimony IJ Tsankov offered before the Senate Subcommittee on Immigration, Citizenship, & Border Safety last fall, in which she complained that (among other things):
DOJ’s management failures have ... included its inability to anticipate the demand for immigration court services and submit budget requests for the needed staffing. The backlog is also a function of budgeting imbalances for immigration law enforcement which for years was not accompanied by concomitant resources for the immigration courts. With the immigration courts relegated to the proverbial basement office for years, the DOJ ignored congressional directives to hire immigration judge teams, and the critical shortage of support staff impedes the court’s ability to get the backlog under control.
Judge Tsankov made similar observations at a January 2022 House hearing at which we both were witnesses, but that was nothing like the allegations her predecessor at NAIJ leveled against Trump’s EOIR during a House hearing at which we both appeared in January 2020.
I would say that perhaps the prior administration had thicker skin, but then the prior administration was also attempting to decertify the union at the time, too.
Many of the points the union has made in the past are evergreen, but Grassley is particularly concerned that McNulty’s gag order will keep Congress from assessing the impact of the Biden administration’s border crisis on the court, noting:
It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
Politics makes strange bedfellows, but I never would have guessed when I first testified about the immigration courts in April 2018 that a Democratic administration would be attempting to chill the IJs’ free speech and a Republican senator would be defending them. But then, a lot of things in immigration world have gone through the looking glass since President Biden took office.