A February "Ideas" article in the Atlantic discusses the clearance process that the Executive Office for Immigration Review (EOIR) — the Department of Justice (DOJ) component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA) — has imposed on immigration judges (IJs) seeking to participate in speaking engagements. I personally agree with most of the limitations therein (which require agency clearance before accepting speaking engagements), but I respectfully disagree with two, that I would ask the director of EOIR and Attorney General (AG) William Barr to reconsider: allowing IJs to preside over naturalization ceremonies and provide pro bono training, without undue encumbrance.
That article states:
Since September 2017, immigration judges and all other employees at the Justice Department's Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not.
It links to the policy, which I have reviewed. As a former government employee, I would hardly describe it as "onerous" — it is not that different from those under which I operated as a trial attorney with the INS, an associate general counsel therein, or when I was an IJ myself (from 2006 to 2015, before that policy was issued).
It would have been helpful had the author included the prior guidance, which I know existed — I had to obtain permission from EOIR to speak at a conference of circuit court clerks that EOIR had asked me to speak at. Consider that fact for a moment.
The new policy may require more layers of review, but keep in mind that government employees are bound to a strict code of ethics and legal restrictions.
One has to do with reimbursement of travel expenses for or the provision of meals at unofficial meetings and speaking engagements. Just take a look at 41 C.F.R. § 304, which contains a maze of landmines (my favorite provision: "§ 304-3.1 To whom do the pronouns 'I', 'you', and their variants refer throughout this part?").
To simplify compliance with such laws, federal agencies generally require that employees receive ethics training annually. Such trainings (and I have been through several) run the gamut from entertaining to pure drudgery. But we want to make sure that government employees do not fall into snares for the unwary. Pure and simple.
When I worked for Congress (the first time), House leadership handed out a business card that explained exactly what staffers could and could not accept. I usually scheduled my meetings to exclude the lunch hour to avoid conflicts of interest (there were several restaurants that tailored the prices on their menu to meet the "gift rule", but no thanks).
More to the point, however, I was circumspect in any statements I made to any outside parties for a simple reason: I was working for someone who was elected. Any statements I made could be intuited to my boss, and might affect his next election. If I made a public statement he disagreed with or thought I should not have made, I could have been fired — Congress is exempt from most labor laws.
The same was true of my time at the DOJ. It was a massive agency, with a strict chain of command. Bill Barr was my first AG, but then I was so far down the line that no one cared what I said, so no one asked, and I did not offer my opinions.
When I worked at the INS for AG Janet Reno, my role was a bit more high-profile, but I never discussed publicly anything I did and definitely not anything I thought about her policies. Public messages were crafted, in concert with others, for public consumption, but always with the AG's concurrence (I never knew what a "buck slip" was, but I quickly learned) and always released through the DOJ press office — though even those occasions were rare.
Look for the number of times that news articles state that the "Justice Department refused request for comment." For good reason: No one at DOJ wants to influence ongoing litigation except in a court of law. That's how good cases get tossed out.
Like the Catholic Church, every executive-branch component is a "top-down" organization, again, for a simple reason: Some officials are appointed, some are Senate-confirmed, and some are career staff, but their actions and statements are attributed to the department as a whole, and therefore to the president — the only person in the whole shebang who is actually elected. No one forces you to work there, but when you do, it is with the understanding that you toe the party line (metaphorically, not literally in the sense of "Democratic" or "Republican").
This all is especially true for judges, who occupy a unique role in our system of laws, government, and justice. The commentary to Canon 2A of the Code of Conduct for United States Judges (not directly applicable to IJs, who are subject to the rules in states where they have bar licenses, but a good model) states: "A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen."
Judges wear black robes for three reasons: to convey the dignity of the court and the respect that is owed to the judge; to cover (to the degree possible) any distinctions between the tribunal and the parties; and to remind the judge of the importance of impartiality — and as importantly, to avoid any appearance of partiality (Canon 2A: "A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.").
This is sometimes easier said than done, but necessary nonetheless. Respondents with scars from the injuries that they suffered for their political or religious beliefs abroad and those who are convicted child molesters are each guaranteed the same respect and the same impartiality. The laws (generally) apply equally to both (although the outcomes they receive are likely to be different), and the treatment they receive from the IJ must be the same. Congress writes those laws, the AG and his delegates (and sometimes the circuit courts) set the policies to implement those laws, but the IJ is the public face of it all and the one who has to apply the laws and policies — again, impartially.
This can be difficult for many IJs when they disagree with those laws and policies. There are avenues of recourse, of course, where those policies violate the law, or the IJ is directed to act unethically.
DOJ has an inspector general (appointed under the Obama administration) charged with investigating waste, fraud, and abuse. The department also has an Office of Professional Responsibility whose job is "to ensure that Department attorneys perform their duties in accordance with the high professional standards expected of the nation's principal law enforcement agency." And, of course one can become a "whistleblower" to the Office of Special Counsel under the Whistleblower Protection Act (WPA):
The [WPA] protects Federal employees and applicants for employment who lawfully disclose information they reasonably believe evidences:
- a violation of law, rule, or regulation;
- gross mismanagement;
- a gross waste of funds;
- an abuse of authority;
- or a substantial and specific danger to public health or safety.
Under the WPA, certain federal employees may not take or fail to take, or threaten to take or fail to take; any personnel action against an employee or applicant for employment because of the employee or applicant's protected whistleblowing.
Or, of course, you can take your concerns to Congress. When I performed oversight of DOJ (under the George W. Bush and Obama administrations), my door was always open, and at House Oversight we even had a number you could call to file a complaint, 24/7.
That said, a government employee can always simply send ideas and complaints up the chain. Or quit, and become a pundit (Washington is full of them), work on a political campaign for a candidate that will make a change, or better yet, run for office. Alternatively, they can go to work for Congress (the path that I chose, twice) and speak directly into the ear of those who can actually influence the policy. The pay is lousy, and the hours can be bad, but you can make a real impact on law (through legislation) and policy (through oversight).
Of course, IJs have their own union (the National Association of Immigration Judges, "NAIJ" — I was a member). Its website describes it as "the recognized representative of Immigration Judges for collective bargaining purposes." As the Atlantic notes, the Trump administration is attempting to decertify NAIJ, but it fails to state that the Clinton administration tried to do the same thing in 2000 (as I have previously explained), and failed.
NAIJ is actually quite public — and vocal. I have personally testified twice on panels with the president of the union (once before the Senate and once before the House). In fact, she is quoted in the Atlantic article as stating that the policy in question "was 'designed to intimidate and to muzzle anyone that would speak publicly.'" "[M]uzzle" and "intimidate" are pretty strong words to use in describing a process implemented by one's employer, proving the power of the union and the ability of its officials to use their positions to "speak publicly about their work".
Public statements by government officials (especially judges), on the other hand, are a different issue. "Federal courts cannot issue advisory opinions because of the Constitution's case-or-controversy requirement", meaning that federal judges cannot rule on questions not before the court. In my opinion (at least) this carries over to statements on policies that would have a potential bearing on the IJ's future decisions. They run the risk of giving the appearance of prejudging future cases, and therefore, impropriety.
Consider an example offered by the Atlantic as to why EOIR would have its "onerous pre-approval process": "Perhaps the Justice Department doesn't want judges to talk about how case backlogs have ballooned since Trump took office, to more than 1 million in 2019." I am not sure why you would need an IJ to do that: EOIR has the numbers posted right on its website. That's a slide, not a discussion.
The discussion would be why the numbers have increased, and that is where the factual merges into the political. I would (and have) argued that it is because Congress has failed to plug the loopholes that encourage aliens to enter the United States illegally with the expectation that they can live and work here indefinitely. Do you really want a sitting IJ to make an argument criticizing Congress?
Or, alternatively, the IJ could assert that the increase in the backlog — which is largely due to the number of aliens who have entered illegally in recent years and been placed on the immigration courts' dockets (851,508 at the Southwest border in FY 2019, up from 303,916 in FY 2017) — has resulted from the fact that country conditions in the countries from which those aliens come have become more repressive and that more valid asylum seekers are fleeing to the United States.
Such statements could impact the appearance of impartiality of the IJ making that assertion, because he or she is (putatively, at least) making a predictive judgment about future cases. In fact, I would consider using them if I were a Department of Homeland Security (DHS) lawyer filing a motion to recuse the IJ in an asylum case.
The fact is, immigration is a politically charged subject, regardless of how it is discussed. Want proof? This article, which is ostensibly about IJs' right to speak publicly, contains not a picture of a judge or a court, but a picture of the border wall (the province of DHS, not DOJ, and therefore not a subject over which IJs have jurisdiction). It is a highly charged political issue (for reasons that truly escape me, aside from the fact that the president made it a cornerstone of his last campaign) that led to a government shutdown from 2018 into 2019.
And the author of that article states: "I learned of the policy through a Freedom of Information Act request my colleagues made to the department, as part of an investigation I've been conducting on the intersection of free speech and U.S. border enforcement." It must be a pretty broad investigation if it covers DHS border enforcement and somehow gets to an EOIR policy memorandum, suggesting an agenda on the part of the requestor.
I will note that the author also erroneously describes the director of EOIR as a "political appointee". That is not the case, however — a quick glance at the federal "Plum Book" of "Policy and Supporting Positions" states that he is a "Career Incumbent".
Making political statements in an official capacity is something that government employees are restricted from doing under the Hatch Act, found at 5 U.S.C. §§ 7323 and 7324. Those provisions are somewhat complicated (again, you receive ethics training as a government employee on such matters), but Government Executive explains it as follows:
For most federal employees, who fall into the "less restricted" class under the Hatch Act, the law's prohibitions have long been limited to these narrow rules:
- Do not engage in political activity while on duty or in the workplace.
- Do not engage in political activity in an official capacity at any time.
- Do not solicit or receive political contributions at any time.
It notes that these employees: "May express opinions about candidates and issues", but continues: "The purpose of restricting political activities is to prevent bias within government agencies and to protect employees from coercion or preferential treatment based on political affiliation and involvement."
There is another group of employees covered by the Hatch Act, "'Further restricted' employees", subject to tighter restrictions, but IJs do not fall within those restrictions pursuant to DOJ policies (although administrative law judges in DOJ do). Even IJ's, however, are subject to DOJ's Hatch Act policies generally (including certain restrictions on social media), laid out in an August 16, 2018, memorandum from Lee Loftus, "Assistant Attorney General [AAG] for Administration and Designated Agency Ethics Official."
Lest you think AAG Loftus is a Trump flunky, he is actually a career official who has been in that position for 13 years (since the George W. Bush administration).
All of this is to say that there are good reasons why there is a clearance process for IJs to follow in accepting speaking engagements, and that IJs currently (through NAIJ) already have a fairly prominent voice.
That said, there are two points in that article that I agree with: that IJs should be allowed to participate in pro bono training classes and officiate at naturalization ceremonies.
"Pro bono" describes the representation that lawyers provide to clients who could not otherwise afford their services. Under the Immigration and Nationality Act (INA), alien respondents have a right to counsel in removal proceedings "at no expense to the Government". Some respondents — especially those who simply want to take an order of removal — don't need counsel. Counsel can, however, assist the immigration court in resolving issues in other removal proceedings — by drafting asylum applications, briefing issues, and gathering evidence, for example.
I myself used to provide such training during my administrative time (half a day every other week), because I wanted to make sure that as many respondents who wanted lawyers could have access to them, and truthfully to make my job easier. IJs occupy a unique position in that they both have to rule on issues in removal cases, and ensure that any facts that could benefit the respondent are adduced and considered. Pro bono counsel relieves the IJ (to some degree, but not absolutely) of that second responsibility.
As for naturalization ceremonies, 8 C.F.R. § 1337.2(b) gives IJs the authority to administer the "oath of allegiance" (provided for in section 337 of the INA), and they should be given the opportunity to do so.
With due respect to U.S. Citizenship and Immigration Services (USCIS), who conduct those ceremonies, the presence of an IJ adds a certain air of formality befitting such an important moment that would otherwise be missing. In addition, those ceremonies allow IJs to underscore the importance of both the oath and the responsibilities of citizenship. Finally, it provides an emotional boost to the IJ — there are few powers in the federal government more significant than the ability to confer U.S. citizenship, and exercising that power serves to remind the IJ of the importance of his or her office.
These may sound like soft variables, but they are not. I would regularly administer the oath at naturalization ceremonies, and always tailor my comments to the date (I did one on baseball's opening day, and compared the first day of new citizenship to the beginning of the sport — both are "long seasons") or the site (one at the B&O Railroad Museum, whose cornerstone was laid by Charles Carroll of Carrollton — the last living signer of the declaration of independence — allowed me to explain American freedom and its responsibilities, for example). Good citizenship starts on day one.
I would never delve into politics, and it would have been inappropriate (and likely illegal) to do so. IJs should know the rules, and comport themselves accordingly.
That said, the immigration courts are facing a significant backlog (as noted above), so I can understand that EOIR would be reluctant to assign an IJ to what is an ancillary duty. I myself would only officiate at naturalization ceremonies on my day off, however, to ensure that I did not adversely affect my docket. I trust that my former colleagues would be willing to do the same.
In summary, there are good legal and practical reasons for EOIR to maintain strict controls on the number and circumstances of IJs' speaking engagements. When it comes to pro bono training and naturalization ceremonies, at least, EOIR may want to reconsider that policy. And I would ask AG Barr and the EOIR director to do so.