The Federal Labor Relations Authority (FLRA) is holding a hearing this week on a petition filed by the Department of Justice to decertify the immigration judges' union, the National Association of Immigration Judges (NAIJ). The Clinton administration tried, unsuccessfully, to decertify the union (which was certified in 1979) in 2000, but intervening events put the Trump administration in a better position this time around.
By way of background, under federal law, "management official[s]" are excluded from bargaining units, like unions. For purposes of this statute, a "management official" is "an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency."
In the 2000 decision, the FLRA regional director held that immigration judges (IJs) are not management officials, finding that IJs do not "make policy through the issuance of their decisions", that their decisions are not published, and that they do not constitute precedent. The regional director also rejected DOJ's claims that IJs "are management officials by virtue of their judicial independence, professional stature and qualifications, the formal amenities of the courtroom and other similar factors."
This decision overlooked the fact that IJ decisions are final in all cases that are not appealed, and as such are res judicata — that is, binding precedent with respect to the same issues of fact, as applied to the same alien. This is a fairly significant point, because in those cases, the IJ is determining the policies of the agency, at least as relates to that alien.
In addition, in certain categories of cases — including credible fear and reasonable fear redeterminations, claimed status cases for respondents in expedited removal, and in absentia removal orders — there is no appeal from the IJ's order at all. While credible fear and reasonable fear reviews were part of statute when the FLRA issued its 2000 decision, they were much rarer than they are today, as the number of credible fear and reasonable fear cases has skyrocketed, from a mere 197 in FY 2000 to 15,433 in FY 2019. Again, in those cases, the IJ is dispositively determining the policy of the agency in the individual case. And, while IJs have issued in absentia orders for years, the number of such decisions has increased significantly in the last decade — from 25,345 in FY 2008 to 89,919 in FY 2019.
Moreover, there have also been significant changes in policy at the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA), since the 2000 FLRA decision that affect the analysis of whether IJs are management officials. As I explained in a July 2017 post:
BIA decisions were issued by three-member panels up until 1999, when, as the American Bar Association has noted, a new "rule permitted a single Board member to issue decisions in a limited range of cases." That said, the Justice Department admitted that: "Over 58 [percent] of all new cases in 2001 were sent to be summarily decided by single Board member review through streamlining."
In 2002, the Justice Department issued new regulations that made single-member BIA decisions the norm. Under 8 C.F.R. § 1003.1(e), the chairman of the BIA:
[S]hall establish a case management system to screen all cases and to manage the Board's caseload. Unless a case meets the standards for assignment to a three-member panel under paragraph (e)(6) of this section, all cases shall be assigned to a single Board member for disposition.
Pursuant to the referenced provision, 8 C.F.R. § 1003.1(e)(6):
Cases may only be assigned for review by a three-member panel if the case presents one of these circumstances:
(i) The need to settle inconsistencies among the rulings of different immigration judges;
(ii) The need to establish a precedent construing the meaning of laws, regulations, or procedures;
(iii) The need to review a decision by an immigration judge or the Service that is not in conformity with the law or with applicable precedents;
(iv) The need to resolve a case or controversy of major national import;
(v) The need to review a clearly erroneous factual determination by an immigration judge [discussed further below]; or
(vi) The need to reverse the decision of an immigration judge or the Service, other than a reversal under § 1003.1(e)(5).
The last referenced provision, 8 C.F.R. § 1003.1(e)(5), states:
Other decisions on the merits by single Board member. If the Board member to whom an appeal is assigned determines, upon consideration of the merits, that the decision is not appropriate for affirmance without opinion, the Board member shall issue a brief order affirming, modifying, or remanding the decision under review, unless the Board member designates the case for decision by a three-member panel under paragraph (e)(6) of this section under the standards of the case management plan. A single Board member may reverse the decision under review if such reversal is plainly consistent with and required by intervening Board or judicial precedent, by an intervening Act of Congress, or by an intervening final regulation. A motion to reconsider or to reopen a decision that was rendered by a single Board member may be adjudicated by that Board member unless the case is reassigned to a three-member panel as provided under the standards of the case management plan.
The practical effect of these reforms was to, in essence, make the decision of the IJ the decision of the agency (EOIR), albeit a decision blessed by a single Board member. Thus, the IJ in those cases is formulating the policy of the agency.
While the 1999 streamlining rules went into effect before the 2000 decision of the FLRA, the expansion in 2002 occurred well after that decision was issued. And, to the degree that there is a difference between BIA decisions being published, as opposed to IJ decisions, the vast majority of BIA decisions are not published, and none of the ones subject to streamlining would be.
That is not all, however. Immigration judges, unlike BIA members, are designated by statute, and given certain authorities thereunder while still exercising the attorney general's discretion. Under section 240(b)(1) of the INA:
The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses. The immigration judge may issue subpoenas for the attendance of witnesses and presentation of evidence. The immigration judge shall have authority (under regulations prescribed by the Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this chapter.
This means that the IJs, not the BIA or even the attorney general, are responsible for compiling the record that will follow the case on appeal through the BIA, and by statute, circuit courts, and the Supreme Court. Specifically, the INA states that with only a limited exception applicable to nationality claims, "the court of appeals shall decide the petition only on the administrative record on which the order of removal is based."
And the regulations governing the BIA make clear that it cannot engage in additional fact-finding in the course of adjudicating an appeal (except for commonly known facts, like other decisions), and that if the respondent wants to add additional facts to the record, he or she must file a motion to remand back to the IJ to consider that evidence.
Moreover, those regulations limit the BIA's review of an IJ's factual findings, precluding de novo review of those facts, and allowing the BIA to review them only if the IJ's findings are "clearly erroneous". That deference is carried over in statute, which prohibits the courts of appeal from reviewing the facts in the case "unless any reasonable adjudicator would be compelled to conclude to the contrary."
Given the significant regulatory, statutory, and discretionary authority with which they are vested to consider the cases that come before them, it would be difficult to conclude that IJs do not "formulate, determine, or influence the policies" of EOIR and DOJ as a whole, and therefore are "management officials" by statute who are excluded from being members of bargaining units. Regardless of the FLRA regional director's decision, either party can appeal it to the full board of the FLRA.
The administration could have pursued another track, as federal statute allows the president to unilaterally issue an executive order stripping employees of collective bargaining rights if they work in intelligence or national security. Presidents Carter, Reagan, George W. Bush and Obama all issued orders to that effect.
The statute governing determination of whether a bargaining unit is appropriate for labor organization representation expressly excludes a unit that includes "any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security". Many IJs have heard so-called "national security cases", and at the former INS, I prosecuted, and supervised other attorneys, who handled quite a few. Nor can it be gainsaid that any removal proceeding does not "directly affect" the national security of the United States, a fact that is particularly true following the September 11 attacks, which were carried out by 19 foreign nationals.
One final point. In November 2019, reporting on the decertification issue, NPR reported:
The move to decertify the immigration judges' union comes as no surprise to many judges.
"Clearly they want to use the judges to ramrod through cases and ramp up deportation regardless of any due process defects their policies have," said one judge who isn't authorized to speak for the union and requested anonymity. Without the union, judges would be effectively muzzled and unable to publicly share their views about the courts, the judge added.
There is certainly a question as to whether IJs should be able "to publicly share their views about the courts", as all judges are supposed to be neutral arbiters who perform their duties faithfully, without political considerations. If there are problems with how EOIR runs the courts, there are whistleblower protections to which IJs can seek recourse. That said, I maintained a good relationship with my supervisors when I was an immigration judge, and found them responsive to the few concerns I had.
As for the purported efforts of the current administration "to ramrod through cases and ramp up deportation regardless of any due process defects their policies have," I would note that the number of IJ complaints has actually dropped through the Trump administration, from 156 in FY 2017 (which was well below the peak in the last decade of 192 in FY 2009) to 97 in FY 2019. In fact, FY 2018 (the first full fiscal year of the Trump administration) was the first year in a decade that saw fewer than 100 complaints (the prior low was 119 in FY 2014).
Keep in mind, the number of IJ complaints has dropped at the same time that EOIR has significantly increased IJ hiring, as the IJ corps has increased from 245 IJs in FY 2010 to 442 in FY 2019. EOIR today has 465 IJs, "85 percent more than it had just five years ago." That suggests to me that the efforts of the attorneys general during the Trump administration to provide bright-line rules, for continuances and other immigration-court matters, have been successful. And perhaps suggests a political bias on the part of those who have been critical of such initiatives.