FLRA Decertifies Immigration Judges' Union

Not the first time this issue has been litigated, and likely not the last

By Andrew R. Arthur on November 5, 2020

On Monday, the U.S. Federal Labor Relations Authority (FLRA) issued a decision decertifying the immigration judges' union — the National Association of Immigration Judges (NAIJ). It is the latest in a series of back-and-forths (spanning two decades) between the Executive Office for Immigration Review (EOIR) — the Department of Justice (DOJ) component with jurisdiction over the immigration courts and Board of Immigration Appeals (BIA) — and NAIJ over the certification of that union.

In an August 13, 2019, post, my colleague Dan Cadman reported that DOJ had filed a petition (on August 9) to decertify NAIJ. As he explained:

This is an important question, because immigration judges formed [NAIJ] decades ago. The NAIJ has become increasingly active as it fights recent attorney general directives covering their work and productivity. NAIJ representatives, such as [the] president of the union ... argue that these directives impinge on their independence. Others, such as myself, believe they restore accountability to a group of individuals who, no matter how they style themselves, are executive branch employees who have too long had little or no oversight, resulting in prolonged and often needless continuances and adjournments and low case closure rates, at least among some judges, thus helping to contribute to unconscionable backlogs in the nation's immigration court system.

The crux of DOJ's argument was that IJs are "management officials", and therefore precluded from forming or being members of a labor organization pursuant to 5 U.S.C. §§ 7103(a)(11) and 7112(b)(1).

The former provision defines "management official" as "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", while the latter prevents such officials from being members of bargaining units.

This was not the first time that DOJ attempted to decertify NAIJ. The Clinton administration tried, unsuccessfully, to decertify the union (which was certified in 1979) in 2000, but intervening events put DOJ in a better position this time around.

In the 2000 decision, the FLRA regional director (RD) held that 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 RD 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."

In the intervening years, the number of unappealable IJ decisions — including credible fear and reasonable fear determinations — increased significantly, such determinations growing from 197 in FY 2000 to 16,269 through the first three quarters of FY 2020, bolstering DOJ's arguments. In addition, as I explained in a July 2017 post, changes in EOIR's regulations in 1999 and 2002 allowed for decisions by single members of the BIA — essentially blessing the IJs' decisions.

And starting in August 2002, DOJ adopted regulations that applied a more deferential standard of review on appeal for IJ factual determinations, reversing them only when they were "clearly erroneous", a departure from the BIA's former standard of reviewing them "de novo" — that is anew, without any deference to the IJs' findings.

In July, the (latest) RD dismissed DOJ's petition to decertify NAIJ. She found that changed circumstances supported the reexamination of the 2000 FLRA decision that IJs are not management officials, but concluded that those changes were not significant enough to decertify the union.

Two of the three members on the panel of the FLRA reviewing that decision determined that the finding of changed circumstances by the RD — which NAIJ did not appeal — allowed a redetermination of the appropriateness of NAIJ's certification.

It concluded that the 2000 RD decision on the IJs' union was in conflict with FLRA's 1993 decision in U.S. DOJ BIA, where it found that BIA members were management officials, as "Board Member[s] directly influence[] [EOIR] policy through [their] participation in the interpretation of immigration laws and the issuance of decisions", and have "broad discretionary power to administer the immigration laws through the issuance of precedential and non-precedential final decisions".

The FLRA concluded in the instant case that IJs influence EOIR policy in the same manner that BIA members were found to have in U.S. DOJ BIA, holding:

Arguing that IJs' decisions do not influence [EOIR] policy while Board Member decisions do is akin to arguing that district court decisions do not shape the law while appellate court decisions do. Such a distinction, based on what appears to be solely the reviewability of decisions, is nonsensical.

The third FLRA member, in dissent, assailed the majority's decision, decrying it as "sophistry", and contending that:

Acting in haste to deprive immigration judges (IJs) of their right to belong to a union, the majority has cobbled together a decision that ignores [FLRA] precedent governing both the review of unit certifications and the scope of the "management official" exclusion.

NAIJ asserted that it would "fight the decision using all available legal avenues", and notably, FLRA decisions may be appealed to the circuit court. I seriously doubt that we have heard the end of this, but for the time being, NAIJ has been decertified.