Union for federal immigration judges fights for survival, right to speak

With a second Trump administration on the horizon, the union representing U.S. immigration judges is engaged in two separate legal fights this week.

Both cases began in 2020, winding through the U.S. court system as the National Association of Immigration Judges — which represents most of the nation’s 734 immigration judges — tries to protect the ability of its members to speak
about immigration law, and defend its very survival.

Unlike other federal judges who are part of an independent judiciary,
immigration judges are employees of the Executive Office for
Immigration Review, the Justice Department agency charged with running
the nation’s immigration courts. Advocates have long complained that
this creates conflicts of interest because the Justice Department is
also the agency responsible for prosecuting criminal immigration cases
in federal courts.

This week, the NAIJ moved to convince the Federal Labor Relations Authority board to restore union protections, removed during the Trump administration in 2020. And, on Wednesday, attorneys with the Knight First Amendment Institute appeared before
the 4th Circuit Court of Appeals to argue against a policy from EOIR prohibiting immigration
judges from speaking to the public violates their 1st Amendment rights.

The two rules were part of a wider move to undermine immigration judges independence during the Trump administration, which included moves from Justice Department officials requiring judges to follow new quotas, reassigning judges to prioritize asylum cases, and restricting judges’ ability to close cases. 

Further, EOIR prohibited immigration judges from speaking or writing publicly in their personal capacities about
immigration or EOIR without prior approval. As the union noted, “for
years, members of NAIJ regularly spoke at conferences, guest lectured at
universities and law schools, participated in immigration-law
trainings, and spoke to local community groups, all in their private
capacities.”

“Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society,” said Judge A. Ashley Tabaddor, president of the National Association of Immigration Judges in a statement from 2020. “This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process.”

The same year, the Federal Labor Relations Authority board ordered the decertification of the NAIJ and moved to strip the judges of their union rights. This week, the union said the three-member FLRA made “an unusual and lawless decision, bucking precedent” and “falsely claimed the judges are managers who set policy.” 

The union noted it has represented immigration judges since 1971, and has “repeatedly and publicly sounded the alarm about an overloaded immigration adjudication system.” 

The failure to allow the judges to manage their own cases, combined with a “swelling caseload” has created a massive backlog of cases. As the union noted, in 2020 the backlog of immigration cases was around 1.2 million. Now, the backlog has tripled to over 3.7 million. This data is confirmed by the Transactional Records Access Clearinghouse, a nonpartisan project based at Syracuse University. The backlog includes nearly 1.7 million asylum cases.

TRAC data shows in Arizona, there are 309,000 cases currently waiting for a decision, and about 63 percent of those cases were filed because people entered the U.S. without inspection.

“It’s projected that the caseload will only increase during the incoming Trump administration,” NAIJ said.

Following the FLRA’s decision, the union continued to represent judges in what they called a “less formal ‘meet and confer” relationship.”

“However, without a collective bargaining relationship judges at times were subject to intimidation and ordered not to speak with Congress or the news media,” the group said. The group said the “gag orders”  faced ciriticism from the Biden White House and from Rep. Pramila Jayapal, a Democrat, who serves as the ranking member of the House Judiciary immigration subcommittee. Further, the U.S. Office of Special Council also reprimanded EOIR, telling the agency’s managers that their actions violated statutes that protect whistleblowers, NAIJ said.

“The NAIJ is an honest broker. It’s the voice of immigration judges who are on the front lines at this critical time for immigration and due process,” said Matt Biggs, the president of the International Federation of Professional and Technical Engineers, the NAIJ’s national affiliate. 

“This fight is about fairness for judges, as well as transparency for lawmakers and the American people to hear what’s going on with immigration adjudication. It’s important that these judges have a voice, be treated justly and that their full rights be restored,” he said.