WASHINGTON – President Joe Biden’s Justice Department has ordered immigration judges to get a supervisor’s permission before speaking to union leaders, a move some lawmakers and union leaders saw as a move to silence critics of his border policy despite Biden saying he is the “most pro-union president.” “never.
Lawmakers on both sides of the aisle — from fiery GOP Rep. Jim Jordan of Ohio to Progressive Caucus Chair Rep. Pramila Jayapala, D-Wash. — months before a critical presidential election, with immigration and the crisis front and center on the southern border, the administration is being dogged by its decision. More than 700 of the country immigration judges In the United States, asylum seekers are the people who decide whether migrants can stay in the country legally, and they currently face a record backlog of more than 3 million cases.
“Nobody knows what happens in the immigration courts better than him judges Themselves,” Matt Biggs, president of the International Federation of Professional and Technical Engineers, Judges Union, an organization affiliated with the National Association of Immigration Judges. “There is a lot of misinformation about immigration and this group is the only honest broker.”
In an email sent last month and obtained by NBC News, Chief Judge Sheila McNulty of the Executive Office of Immigration Review (EOIR), the DOJ division that oversees immigration courts, told two top NAIJ officials effective immediately. subject to the same policies as every EOIR employee,” and will no longer be allowed to speak freely to the press or before Congress, which has been the norm for more than 50 years.
When NBC News contacted Judge Samuel Cole, a Chicago-based immigration judge and NIAJ executive vice president, this week, he said, “I’m not authorized to comment to you. “I’m sorry, I need to get approval in advance for what I’m going to say,” he said and hung up the phone.
The DOJ, which hires immigration judges and administers immigration courts, has historically barred judges from speaking, except to lead the immigration judges association. In the past, union leaders have been able to testify before Congress and be quoted in the media on issues such as courtroom backlogs, asylum criteria and efforts to prioritize certain cases such as families or detained migrants.
The union was effectively dissolved by the Trump administration in 2019, when the NAIJ president described the move as “nothing more than a desperate attempt by the DOJ to evade transparency and accountability.”
Biden‘s DOJ has departed from its predecessor’s efforts, but the decision to re-certify the union rests largely with the Federal Labor Relations Authority, which is deadlocked in a 1-1 split until the Democratic-controlled Senate confirms Biden’s nominee to the board.
Until that happens, the DOJ may choose not to recognize the union and therefore ban its members from speaking out unconditionally.
But advocates say the White House could voluntarily approve the union if it wanted to. Union representatives believe the DOJ’s handling of immigration has been heavily criticized for its decision to silence its members.
“The NAIJ often testifies before Congress, they talk to the press, they talk to reporters, and we can only speculate what the chief justice there or others around him didn’t like,” said Judge Mimi Tsankov, NAIJ president, Biggs. in a phone call Tuesday.
An EOIR spokesman said in a statement that the division’s policy on judges’ speech does not limit their ability to address Congress and make “protected statements,” but did not say why the judges were not allowed to testify or speak before Congress. press
“EOIR management works to ensure that all EOIR employees are aware of and comply with the statutes, regulations, and Department policies and procedures that apply to all EOIR employees, regardless of their position or affiliation with external agencies,” said EOIR spokeswoman Kathryn Mattingly. “This includes our existing policy on speaking engagements, which encourages EOIR employees to participate in speaking engagements and ensures the accuracy of information provided to the public about EOIR’s policies and operations. This policy does not limit the rights of individuals to make protected disclosures, including whistleblowers to Congress or others.”
Tsankov has criticized the historic backlog of immigration court cases and testified before a Senate committee in October that part of the blame lies with the DOJ’s “failure to provide effective leadership” on the issue. He was regularly featured in the press and on panels, including in February when he spoke about the challenges facing US immigration courts, days before the gag order went into effect.
A representative of the union, who did not want to be named, said the organization’s judges “have always been outspoken in their support of due process. We do not shy away from pointing out the failures of the immigration court system, EOIR and the Department of Justice.”
Once the order goes into effect, the official said, Congress will have a limited window into the realities of the immigration system and the DOJ will be unable to develop effective policies to address its shortcomings. “It is truly disappointing when the Commonwealth fails to draw attention to the serious flaws in the system and the mismanagement of the immigration courts. And it takes away the important voice for the judges to express their concerns,” said the person.
For example, during the Trump administration immigration judges could talk about the decision to expedite cases and send children to the border for remote hearings.
In a letter to Attorney General Merrick Garland earlier this month, Sen. Chuck Grassley, R-Iowa, a persistent voice of whistleblowers, suggested the move was intended to fend off criticism of the administration’s actions on immigration. “Especially when the leadership and policy failures of the Biden administration have created an unprecedented immigration crisis at our Southern Border, it is critical that immigration judges reach out to Congress,” he said. Grassley’s office has yet to hear back.
Judges could face consequences, including termination, if they ignore EOIR’s new directive and speak publicly without express permission, a source familiar with the process said.
“EOIR’s actions are concerning,” said Jayapal, the ranking member of the House Judiciary Committee’s immigration subcommittee. “The National Association of Immigration Judges has been an integral voice for immigration judges for decades. Their leadership has been instrumental in congressional oversight of the immigration courts, including testifying before the Subcommittee on Immigration in the previous two Congresses at the invitation of the Democratic majority. I hope that the DOJ will immediately clarify this directive.”
Union representatives met this week with officials from the White House’s Domestic Policy and National Economic Councils, who said they were unaware of EOIR’s plans and that the agency was acting unilaterally. The sources said they expected EOIR to change course on the matter after pressure from immigration advocates and Congress, but the White House rarely interferes with DOJ orders.
“There’s a disconnect between Biden’s pro-union stance in some of these government agencies and what’s happening in practice at those agencies,” Biggs said.
The White House says any policy regarding immigration judges is determined by the DOJ, and White House officials do not want to interfere.
To prevent this from happening in the future, the union supported legislation creating an independent immigration court separate from the DOJ. In 2022, D-Calif., Rep. The Real Courts, Rule of Law Act, introduced by Zoe Lofgren, would transition the immigration court system to an independent judicial system. He reintroduced the bill on Tuesday, but it has no Republican co-sponsors.
Keeping immigration courts within the DOJ “leads to case delays, and the NIAJ calls for it every chance they get,” a federal official said. “It’s not good for due process, the American public, or the people who come before our courts.”