House GOP launches investigation into DOJ's immigration judge 'gag order'

The Biden administration is seeking to “stifle the free speech of immigration judges,” top Republicans on the House Judiciary Committee alleged on Monday as they opened an investigation into new restrictions the Justice Department has placed on some of its employees. 

The panel's probe revolves around Justice's Executive Office of Immigration Review’s recent notice to immigration judges instructing them to no longer speak publicly without prior approval. Reps. Jim Jordan, R-Ohio, and Tom McClintock, R-Calif., who chair the committee and its panel on Immigration Integrity, Security and Enforcement, respectively, said in a letter to EOIR Director David Neal the “gag order” would interfere with their oversight and lawmaking responsibilities. 

EOIR may be violating federal law by prohibiting employees from speaking freely with Congress and Jordan and McClintock suggested the executives responsible may be subject to having their salaries withheld. 

The issue stems from the National Association of Immigration Judges losing its recognition as a union, leading Justice to tell the organization any rights it previously enjoyed as part of a collective bargaining agreement are no longer valid. NAIJ has represented immigration judges for more than 50 years and has never previously faced restrictions on its public testimony.

In an email last month to NAIJ leadership, Sheila McNulty, the chief immigration judge at EOIR, said that while those NAIJ officials may be “under the impression” they could conduct written and spoken engagements without agency authorization, that was not the case.

“The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present,” McNulty said. “Please consider this email formal notice that you are subject to the same policies as every EOIR employee.”

In November 2020, the Federal Labor Relations Authority voted to decertify NAIJ’s union status, asserting that the judges are now management officials. FLRA reaffirmed that decision in 2022, despite the Biden administration withdrawing its request for decertification. NAIJ appealed that decision to the U.S. Court of Appeals for the D.C. Circuit, but the court last year dismissed the case for lack of jurisdiction while the union was still seeking a remedy before the labor authority.

In their letter, Jordan and McClintock requested all documents and communications related to new restrictions on public testimony, as well as materials related to the testimony NAIJ President Mimi Tsankov gave to the Senate in October. The lawmakers previously requested testimony from EOIR leadership and reiterated those entreaties on Monday. 

EOIR did not immediately respond to a request for comment, though a spokesperson previously said it was a “personnel matter” on which the agency could not comment. It has until April 1 to respond. 

The Judiciary panel leaders said the committee “takes seriously the department’s efforts to silence immigration judges.” They noted the issue was particularly concerning given the high levels of migrants arriving at the border and the added strain that has placed on an already backlogged immigration court system. 

NAIJ has occasionally used its platform to speak out against policy changes it views as harmful to the roles of immigration judges. The group has regularly made itself available to the media, testified before Congress and participated in panel discussions. It has frequently derided its placement within Justice—as Tsankov reiterated in her recent congressional testimony—saying it should instead be made an independent court under Article 1 of the Constitution. Political pressures and departmental mismanagement made possible under the current arrangement has contributed to the backlog of nearly 3 million cases, the union has said.

Matt Biggs, president of the International Federation of Professional and Technical Engineers, NAIJ’s parent union, said the Judiciary Committee's investigation was predictable given the attention currently paid to the border and the knowledge immigration judges can offer to lawmakers. He called the decision an "embarrassment to the Biden administration" and raises the question of "what they are trying to hide."

“It is no surprise to see that the Committee on the Judiciary has opened an investigation into this unprecedented overreach by [EOIR] intended to silence the nation’s immigration judges and their union," Biggs said. "The NAIJ has been a trusted and valuable source to Congress, to the press, and to the public for over 53 years."

This story was updated on March 18 at 2:59 p.m. with additional comment.