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EXCLUSIVE: Hon. Dana Leigh Marks on EOIR Gag Order

March 12, 2024 (5 min read)

Hon. Dana Leigh Marks, Mar. 12, 2024

How Low Will They Go? - An Outraged Retired IJ Speaks (Because She Can)

"Earlier this month, bucking over 50 years of precedent, immigration court management advised the officers of National Association of Immigration Judges (NAIJ) that they must get advance permission to speak to the public, to members of the press or to Congress. Having served 35 years as an Immigration Judge (IJ) at the Department of Justice’s Executive Office for Immigration Review (EOIR), I shouldn’t be surprised by their “gag order,” EOIR’s latest travesty. Sadly, EOIR’s management policies continue to deteriorate and offend due process.

In short, EOIR’s premise to impose this restriction is flawed and patently unconstitutional. Moreover, the short sightedness of their desire to muzzle their judges
in the field is extreme and undemocratic. EOIR is seizing the perceived opportunity created by the April 15, 2022 decision of the Federal Labor Relations Authority (FLRA) to classify IJs as policy makers who therefore are legally considered agency management who cannot unionize. Since the FLRA decision (which NAIJ is continuing to challenge), the collective bargaining agreement which was in force for over a decade was suspended. This is not what I am addressing today, although I have plenty to say on the matter.

Important here is the fact that EOIR doesn’t understand that union status or status as a professional association is completely independent of the collective bargaining process
in which NAIJ was able to engage with their previous FLRA certification. NAIJ was established as an association in 1973, recognized as the exclusive representative of IJs
in 1979, affiliated with the International Federation of Professional and Technical Engineers (IFPTE), an affiliate of the AFL/CIO in 1999, and didn’t even have a collective
bargaining agreement until 2007. Until this month, its officers were free to speak publicly without prior restraint from EOIR.

Now EOIR seeks to require even NAIJ union officers to endure a pre-approval process by the official Speaking Engagement Team, called “SET.” The role of SET is to ensure
compliance with “both the law and agency policy while promoting consistency in all EOIR communications.” The true goal of this process is clear: eliminating virtually all
speech by IJs. EOIR does this by requiring that anything an IJ says related in any way to immigration go through the SET process because it directly relates to an IJ’s duty.

Until now, NAIJ officers have always been exempt from this process because they were speaking on behalf of NAIJ, not immigration court management. The SET process is a
bureaucratic black hole where judges are required to seek permission to speak, even if it is only in their personal or NAIJ capacities. The process begins with a request to a
judge’s supervisor which is then forwarded on to the SET (Speaking Engagement Team), then on to the Ethics unit, and finally back again to the judge’s supervisor. The request may also be reviewed by the EOIR Office of Policy and even the Office of the Director. The SET process is labor intensive for the judge who must provide explicit detail about what they plan to say and provide any materials, including slides, that they would use.

The SET process applies to virtually all settings or gatherings, large or small, educational or nonprofit. It has no time frames attached and has been known to drag on
for months. In my experience, most judges now turn down offers to participate in conference panels or community education events because the requirements of the
SET process are so onerous and the ultimate decision delayed and uncertain. On many occasions they have had no choice but to decline participation because the lead time
from invitation to the event is insufficient to accommodate the delay involved in the SET process.

This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.

Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?

In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.

EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued."

The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t.......