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Immigration Law

Immigration Judges Challenge Justice Department Speech Policy

Knight First Amendment Institute, July 1, 2020

"The Knight First Amendment Institute at Columbia University filed a lawsuit today on behalf of the National Association of Immigration Judges (NAIJ) challenging a government policy that imposes an unconstitutional prior restraint on immigration judges seeking to speak or write publicly in their personal capacities, no matter the topic, audience, or venue. The policy was recently instituted by the Executive Office for Immigration Review (EOIR), the Justice Department agency charged with running the nation’s immigration courts. Representing its members, NAIJ asks the court to block enforcement of the policy.

“Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society,” said Judge A. Ashley Tabaddor, President of the National Association of Immigration Judges. “This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process.”

For years, EOIR allowed immigration judges to speak in their personal capacities on issues relating to immigration, so long as they made clear that they were not speaking on behalf of the agency. EOIR changed this policy in 2017 to require judges who wished to speak publicly in their personal capacities to get prior approval. In January of this year, EOIR issued an even more restrictive policy that categorically prohibits immigration judges from speaking in their personal capacities about immigration law or policy or about EOIR programs or policies. On all other topics, the policy requires immigration judges to obtain EOIR’s prior approval.

“We are in the midst of an urgent public debate about immigration reform in this country and some of the most crucial voices in that debate are being silenced,” said Ramya Krishnan, Staff Attorney at the Knight First Amendment Institute. “Immigration judges have unique insight into the immigration system, but this policy prevents them from sharing that insight without facing the possibility of disciplinary action or even losing their jobs.”

Today’s complaint notes that the change in EOIR policy comes “at a time of intense scrutiny of the nation’s immigration system. President Trump made immigration a signature issue of his presidential campaign, and his administration has made sweeping changes to the immigration court system. … Immigration judges are uniquely positioned to inform the public on these issues, but the 2020 Policy prevents them from doing so.” Moreover, the complaint notes, “[i]n recent months, immigration judges have also been prevented from commenting on the impact of the COVID-19 pandemic on the immigration courts and detained immigrants.”

A copy of today’s complaint can be found here.

EOIR’s 2017 policy was first released publicly through a Freedom of Information Act request submitted as part of a broader Knight Institute investigation by writer-in-residence Cristian Farias into First Amendment restrictions in the immigration context. In January, the Knight Institute sent a letter to EOIR’s Director James R. McHenry asking him to suspend the 2017 policy. A copy of the letter and policy can be found here.

EOIR’s 2020 Policy follows a petition filed by DOJ to decertify NAIJ. That petition, filed on August 9, 2019, proceeded to a hearing on January 7, 2020, and a decision is pending. If the petition is successful, NAIJ officers (who are currently exempted from the policy) will no longer be able to speak in their representative activities without EOIR’s prior approval.

For more information, contact: Lorraine Kenny, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org. "