Judicial Battle Over Discretion And Due Process At Immigration Court

Immigration Judges are suing their employer, the Department of Justice.

Sounds strange, doesn’t it?

Actually, it’s about par for immigration courts in the Trump era.

The Justice Department Muzzle Policy

The National Association of Immigration Judges is suing the Trump administration over a policy that censors them.

The battle between immigration judges, who are technically employees of the Department of Justice, has been brewing since the advent of the Trump Administration.  In an effort to curtail the ability of immigrants to win cases at immigration court, the administration has imposed vast restrictions on the ability of judges to do what judges are expected to do.

Exercise judicial discretion, integrity, and independence in a fair manner, within the confines of already strict regulatory parameters.

The union is represented by the Knight First Amendment Institute at Columbia University.

The policy being challenged was implemented in 2017 under former Attorney General Jeff Sessions. It prohibits immigration judges from speaking in public or writing about matters that are related to immigration law, immigration policy, or immigration court programs.

Recently, the muzzle policy was expanded, a move which sparked the judges lawsuit against their employer.

It now requires judges to go through a pre-approval process to speak or write in their personal capacity on issues unrelated to immigration – no matter the topic, audience, or venue.

And if they disobey?

Violation could lead to their reprimand, suspension, or even removal from federal employment.

Are Immigration Judges Mere Functionaries?

The muzzle policy, as noted earlier, is not the first disagreement between immigration judges and their employer.

Over the past few years, the DOJ has taken several actions which impinge on the role of of judges in the immigration system.  All driven by political directives from the top.

A few examples:

1. The Department has imposed case completion quotas on judges. Why? To speed cases along, depriving immigrants of due process.

2. The Department has given more power to the department director and regularly refers more cases to the Attorney General. Why? To override decisions made by the judges that do not comport with political positions preferred by administration.

3. The Department has eliminated the ability of judges to exercise discretion on simple matters like granting immigrants additional time to prepare. Why? Again, to ensure that immigrants do not have adequate time to prepare cases in a fundamentally fair way.

These measures do not sit well with immigration judges.

They already face extraordinary pressure from the huge backlog of cases emanating from heightened DHS detention policies.

This is coupled with hostile neglect of the immigration court system’s needs for modern equipment and increased staff support.

As a result, the Union has increasingly taken a stance calling for the immigration courts to be made independent from politics – similar to other federal courts – like the bankruptcy and tax courts.

Decertification Of Immigration Judges Union Is Political Tool To Erode Judicial Integrity

In turn, the Department of Justice filed suit to decertify the Union and minimize the independence of immigration judges.  The department lost its initial attempt to classify the judges as bureaucratic functionaries.

The DOJ asserted that the role of immigration judges should be considered management position employees.

On July 31, 2020, the Federal Labor Relations Authority Regional Director Jessica Bartlett rejected this contention.  She pointed out their decisions are typically subject to the review of the Board of Immigration Appeals and do not set precedent, as well as that the judges are not involved in creating or setting policies at the Department of Justice.

The ability to make factual findings, Bartlett emphasized, does not convert their position into one as managment officials.

The Justice Department, in response, challenged this position and asked the FLRA Board to review the decision.  On November 2, 2020, the Board overruled Bartlett and concluded that immigration judges are management officials. The action stripped the judges of their collective bargaining rights.

In dissent, Board member Ernest DuBester, the lone Democrat on the FLRA, asserted the majority’s analysis ignores distinctions between the authority possessed by immigration judges versus the authority of manangment officials to bind the agency with respect to its policies.

The rationale behind the FLRA decision is akin to an executive order issued by President Trump on October 22, 2020 that converts thousands of federal civil servants into political staff members who could be fired if they did not demonstrate fealty to him instead of the people they swore to serve.

The FLRA decision, just 11 days later, leaves immigration judges without any civil service protections and union representation. Like other federal employees, it makes them “at-will” employees who could be suspended or fired at the whim of managers, including for partisan reasons, with no avenues of appeal.

The battle is not over.

The judges’ union has indicated it will pursue all legal remedies to reverse the FLRA decision.  The final word will not heard until this matter is heard at the federal appellate level.  But until then, the union has been decertified.

It is also possible the Trump executive order regarding federal employees will be dismantled by the new Biden administration in January 2021.

Why Judicial Independence Is Essential For Immigration Due Process

All of this does not make for a great working relationship between the judges and their employer.

The judges are treated as if they are the enemy of the Justice Department, not dedicated legally-trained professionals trying to ensure our country’s immigration laws are followed.

Against this backdrop, is it possible for immigration judges to engage in thorough fact-finding and administer impartial justice?

Of course, that absence of due process at immigration court does not bother the current administration.

They’d prefer to throw out the middleman, the courts, and simply allow detention to directly proceed to deportation without any hearings.

Even though I have personal misgivings about several immigration judges, having battled with them for more than two decades, I’m on their side in this fight.

Immigration law cannot exist without a bench allowed to think for themselves.

By Carlos Batara

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