Immigration Judges Take Free Speech Case to CA4 (NAIJ v. Neal)

Erika Williams, CNS, Jan. 25, 2022

"A three-judge panel of the Fourth Circuit heard arguments Tuesday over a Trump-era rule that immigration judges say continues to violate their freedom to speak out about government policies on their own time. Immigration judges challenged a policy requiring a sub-agency of the U.S. Justice Department, the Executive Office of Immigration Review, to preapprove judges’ requests to express their opinions on immigration policies and other matters through published writing or speaking at public events in their personal capacities. The National Association of Immigration Judges, a union representing nearly 500 immigration judges, filed the federal lawsuit in the Eastern District of Virginia. Seeking a preliminary injunction to block the policy, the NAIJ asserted that the policy was vague and violated the First Amendment right of immigration judges to speak publicly in their personal capacities about important issues and concerns. Senior U.S. District Judge Liam O'Grady, a George W. Bush appointee, denied the union's request for an injunction in August 2020, finding that the court was divested of jurisdiction over the constitutional claims under the Federal Service Labor-Management Relations Statute. That ruling prompted the NAIJ's appeal to the Richmond-based Fourth Circuit. “This case is about a sweeping prior restraint on the speech of federal immigration judges. For over two years now, the agency has banned judges from speaking as private citizens about immigration law or policy or about the court system they administer,” said attorney Ramya Krishnan of the Knight First Amendment Institute, who represented NAIJ during oral arguments on Tuesday."

[The case is NAIJ v. Neal, CA4 No. 20-1868.]