Gag order on federal immigration judges is backfiring, union says

A union representing federal immigration judges is urging the Justice Department to reverse speech restrictions imposed on jurists who publicly voice challenges they face on the bench, including chronic understaffing and overwhelming workloads.

Labor leaders said the recent appointment of Mary Cheng as acting director of DOJ’s Executive Office for Immigration Review is an opportunity for the agency to reverse course on this policy and uninhibit the voice of the National Association of Immigration Law Judges, a 53-year-old organization.

The policy, perceived widely as a gag order, stunned union leaders and lawmakers on both sides of the aisle who say the restriction impedes transparency about the situation at the border and the massive backlog of immigration cases pending in federal courts. The policy, they say, is unprecedented. For decades, unionized immigration judges have provided testimony in Congress, discussed issues on panels, and offered commentary in legal journals. Some of this has included criticism of mismanagement and failure to keep employees safe during the COVID-19 pandemic. Then, in mid February, two judges who also served as union officials were told they cannot make public statements without obtaining internal approval.

Immigration judges union, a frequent critic, is told to get approval before speaking publicly

“This gag order, if [DOJ] thought that was going to quell Congress’ interest in hearing from immigration judges, it completely backfired on them in a bipartisan way,” said Matt Biggs, president of the International Federation of Professional and Technical Engineers, in a phone interview. “And it flies in the face of the Biden administration’s [positive] posture towards unions.”

To be clear, he said, the union does not believe the White House had anything to do with this policy, and IFPTE has been in talks with the administration to rectify the situation. Still, Biggs said it has a chilling effect on the judges’ corps.

“If you’re gonna go after the head of the union, it’s pretty clear you wouldn’t hesitate to go after rank-and-file judges,” he said.

The topic of immigration is already a prickly issue, even without growing concern from lawmakers who have since learned about, and condemned, the speech policy. Congress has held a number of hearings about immigration at the U.S. border with Mexico, especially as migrant encounters reached a record high in December.

Perceptions of the situation by the American public are also deeply polarized, but where many agree is on the need for more immigration judges and staff to deal with a court backlog that topped 3 million cases last year. According to data presented by Syracuse University, immigration judges now average 4,500 pending cases each.

Biggs said judges are elected to union offices to be vocal about the need for resources to fix the problem, and restricting them means neither Congress nor the public can hear from the frontlines of the crisis.

“We work to improve our immigration court system by educating the public, legal community and media; providing testimony at congressional oversight hearings; and advocating for the integrity and independence of the immigration courts and immigration court reform,” said Mimi Tsankov, a judge and NAIJ president, before Congress last fall.

Historically, Tsankov and Judge Samuel Cole, NAIJ executive vice president, have spoken on behalf of NAIJ with the understanding that they talk in their capacity as union representatives, not official government employees — a routine procedure for many federal workers who act as a spokesperson for a professional association or bargaining unit.

However, in February, Sheila McNulty, chief immigration judge, sent an email to the judges saying that while they may have been under the impression that their NAIJ positions permitted them to make public statements without approval, “any bargaining agreement related to that point that may have existed previously is not valid at present.”

When contacted by phone on April 1, Tsankov politely declined to offer a comment, saying she was instructed by the order to cease communication with Congress and the press.

In the weeks that followed the email from leadership, lawmakers caught on and criticized the move.

House Republicans demand answers on ‘gag order’ for union of immigration judges

Republican House Judiciary Chairman Jim Jordan, a staunch critic of the Biden administration’s handling of the border, said in a letter to EOIR the order stifles free speech and even appears to violate appropriations law that guarantees the right of federal employees to speak to Congress without interference by management.

Democrat Rep. Pramila Jayapal, ranking member of the House Judiciary immigration subcommittee, also criticized the department’s decision, calling it “concerning” and said the voice of NAIJ leadership has been critical to oversight for decades.

McNulty’s email, obtained by Federal Times, stipulated that judges must go through the Speaking Engagement Team process, which involves rounds of review before an employee can commit to making a public statement.

“[That policy] provides no time frames for decisions nor any opportunity for review of adverse determinations,” said the Round Table of Former Immigration Judges in a recent statement. “It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days.”

In reviewing the policy, the Office of Special Counsel said the policy requiring prior restraint was perceived as a formal gag order, as it did not include any anti-gag order language.

At OSC’s recommendation to be in compliance with whistleblower law, DOJ revised the policy in March to add the required language and clarify that the policy does not restrict protected disclosures to Congress, inspectors general or counsel. But the revisions do not ultimately lift the bar on speaking publicly in other cases, the union said.

Kathryn Mattingly, a spokesperson for the agency, said “EOIR leadership welcomes participation in speaking engagements and works to ensure that employees do so consistent with statutes, regulations, and department policies and procedures.”

It’s not clear whether Acting Director Cheng will considering repealing or amending other aspects of the policy.

“She has the authority to do it,” IFPTE’s Biggs said. “And we respectfully request that she do so, and do so immediately.”

About Molly Weisner

Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.