Senate Democrats Call on Attorney General to Restore Immigration Judges Union

The Democratic members of the Senate Judiciary Committee on Monday urged Attorney General Merrick Garland to reverse course on efforts by the Trump administration to bust a union of immigration judges and severely restrict what those judges can say publicly.

In 2019, the Justice Department began a push to decertify the National Association of Immigration Judges, arguing that the judges are management officials and thus ineligible to bargain collectively. In 2000, the Federal Labor Relations Authority concluded that the judges’ duties were entirely “nonsupervisory” in nature, and granted them the right to form a union, and last year an FLRA regional director concluded not enough has changed to overturn that decision.

But last November, one day before the presidential election, Trump’s appointees on the FLRA board voted to overrule the regional director and bust the union, despite finding little fault in the regional director’s reasoning. The lone Democrat on the FLRA board at the time, now-Chairman Ernest DuBester, accused his colleagues of “sophistry” and “facetious” reasoning to justify a predetermined outcome.

In January 2020, the Executive Office of Immigration Review issued a gag order prohibiting immigration judges from “seeking to speak or write publicly in their personal capacities, no matter the topic, audience or venue.” The policy is the subject of a federal lawsuit filed by the Knight First Amendment Institute and Columbia University on the union’s behalf.

In a letter to Garland, the lawmakers, led by Senate Judiciary Committee Chairman Dick Durbin, D-Ill., urged the attorney general to reverse these decisions and restore the immigration judges’ rights.

“The November decision [to bust the union] reversed two decades of precedent by holding that immigration judges are ‘management officials’ who may not form a union,” they wrote. “The Trump administration’s petition to decertify the NAIJ and the FLRA’s eleventh-hour decision appear politically motivated and threatened the independence of our immigration courts.”

The Democrats wrote that the union must be restored in order to protect the judges’ judicial independence.

“Without collective bargaining rights and the protection of the NAIJ, immigration judges will be less independent and more susceptible to political pressure,” they wrote. “The Trump administration demonstrated the gravity of this threat by attempting to impose a political agenda on the immigration courts. We appreciate your commitment to restoring the efficiency and integrity of our immigration court system. Without the additional protections NAIJ offers, however, the court system will remain susceptible to actions by future administrations that would further undermine its fairness and efficiency.”

The lawmakers demanded that Garland provide information on how the Justice Department plans to “alter its stance” toward the judges union, as well as how it plans to change the gag order policy on immigration judges by June 14.

In a statement, Matt Biggs, secretary treasurer of the International Federation of Professional and Technical Engineers, whose union includes the judges union, lauded the senators for pressing the Justice Department on these issues.

“The effort to misclassify nonsupervisory immigration judges as managers and deny them their union rights is entirely part and parcel to the Trump administration’s attack on federal employees’ union rights and was meant to further former Attorney General Barr’s agenda to erode due process, judicial independence and fairness in the immigration court,” Biggs said. “As IFPTE continues to work to reverse the Trump DoJ’s effort to decertify NAIJ, we applaud all of these senators for providing responsible oversight at DoJ and for asking Attorney General Garland what steps he will take to ensure that these DoJ employees maintain their union rights.”