A union representing hundreds of immigration judges is suing the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) over a policy imposing restrictions on judges who wish to speak or write in their personal capacity on matters relevant to their work.
The Knight First Amendment Institute, a legal group at Columbia University, filed a lawsuit on Wednesday in federal court on behalf of the National Association of Immigration Judges (NAIJ). The suit alleges that the speech restrictions against immigration judges amount to violations of the First and Fifth Amendments and asks the court to impose a preliminary injunction blocking the policy.
“Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society,” NAIJ President Ashley Tabaddor, who is also a judge, said in a statement. “This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process.”
The complaint marks the latest showdown between the Trump administration and the NAIJ, a labor group that represents roughly 460 federal immigration judges. The two have been at odds as the administration has instituted changes to immigration courts, which are run by the EOIR. Immigration judges are unique in that they are considered judicial officers exercising the authority of the attorney general, who has the power to overrule their decisions.
At issue in this case is how the EOIR is handling the opinions offered by immigration judges and other employees in settings such as public speeches or interviews with the news media. Before President Trump came into office, judges were generally allowed to speak or write on issues relating to immigration so long as they disclosed clearly that the opinions they shared were theirs and not the agency’s. Judges had to receive approval from a supervisor and it was normally granted, Knight First Amendment Institute staff attorney Ramya Krishnan told The Hill.
But in 2017, EOIR Director James McHenry began limiting the circumstances under which judges and other personnel could speak on their own behalf. In January 2020, McHenry released a policy taking the restrictions a step further, according to documents obtained by the Knight First Amendment Institute.
Under the revised policy, immigration judges are prohibited from engaging in public speaking or writing on matters related to immigration law, policy or EOIR programs, the suit alleges. The policy also requires judges to go through a pre-approval process to speak or write in their personal capacity on issues not related to immigration. The policy does not apply to NAIJ officers who speak in their capacities as union reps.
The lawsuit argues that these restrictions represent a prior restraint in violation of the First Amendment. It also alleges that the policy lacks the procedural safeguards such a rule would need to cohere with the law.
“As the Supreme Court has repeatedly held, people do not surrender their free-speech rights when they accept government employment,” the suit states. “They retain their rights, as citizens, to speak on matters of public importance, and the government can silence them only if it can show that its interest in doing so outweighs the employees interests in speaking and the public interest in hearing what they have to say.”
“The government cannot satisfy this test here,” it argues.
EOIR declined to comment when contacted about the lawsuit.
The complaint noted that the policy is being enacted at a time of “intense scrutiny” of the nation’s immigration system under the Trump administration. It also said that the policy has prevented immigration judges from speaking publicly about “the impact of the COVID-19 pandemic on the immigration courts and detained immigrants.” Nearly all of the nation’s 69 immigration courts and adjudication centers have remained open for proceedings amid the outbreak, according to the suit.
“We filed this lawsuit because this policy is stifling the voices of immigration judges at a time when they are especially important,” Krishnan told The Hill in an interview. “Their observations are especially urgent in the context of the current pandemic, which threatens to turn immigration courts into health hazards.”
Krishnan said the legal action is the culmination of an investigation the group launched into free speech issues involving U.S. border enforcement. Cristian Farias, a writer in residence at the institute, discovered last year during his probe that organizations that typically invite immigration judges to speak at their events were now having trouble getting them to participate.
In early January, the group obtained a copy of an EOIR memo from September 2017 announcing broad restrictions on speaking engagements for immigration judges and a more comprehensive pre-approval process.
The Knight Institute sent a letter to EOIR in January demanding it suspend the policy. Just weeks later, the EOIR issued a revised memorandum to “clarify some points” related to the policy. The suit argues that the revised policy makes the restrictions more severe.
The plaintiffs allege that the policy is having a significant impact on the public conversation about the Trump administration’s push to enforce further immigration restrictions. Immigration judges giving speeches, guest lectures and legal trainings was commonplace in the past, but now many feel “discouraged to submit requests to speak publicly about their work,” Krishnan said.
She added that “it’s hard not to draw a connection between the administration’s major reforms of the system and this policy as an attempt to create the impression immigration judges and other agency employees support the changes.”
The Trump administration has instituted a number of changes to the immigration courts system in recent years, including a 700-case-per-year quota and other benchmarks for judges as part of an effort to clear a backlog in cases.
The Justice Department also petitioned the Federal Labor Relations Authority last August to decertify NAIJ as a union, escalating a rift between the administration and the group.
Tabaddor, the NAIJ president, earlier this year asked Congress to make immigration courts independent of the DOJ structure that oversees the current system. She said “America needs an immigration court that is free from improper influence on the decisions of immigration judges.”
–Updated at 3:52 p.m.