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Garland Gags NAIJ Leadership

March 07, 2024 (4 min read)

Jamie Horwitz, IFPTE, Mar. 5, 2024

"Immigration and border issues are leading the news, the overburdened immigration courts have a backlog of 3.3 million cases, but don’t expect to see quotes from the union representing federal immigration judges in upcoming stories. In an attempt to silence the judges’ union, the two immigration judges who currently serve as president and executive vice president of the National Association of Immigration Judges (NAIJ) have been sent an unprecedented gag order by top management in the Department of Justice’s Executive Office for Immigration Review.

NAIJ, which has spoken out on behalf of its members for more than half a century first as an association and later as a union, has national affiliations with both the International Federation of Professional and Technical Engineers (IFPTE) and the AFL-CIO.  Matt Biggs, IFPTE’s president called the move by a DOJ manager, Sheila McNulty, “an outrageous act of censure and an attack on freedom of the press and transparency.” The national union leader went on to say that the decision to muzzle judges at this time is “an embarrassment to the pro-labor Biden administration, to Attorney General Garland and to Vice President Harris, who have called for empowering federal workers and their unions.”

In addition to representing immigration judges, IFPTE represents other highly skilled worker employed in the federal government including NASA rocket scientists, administrative law judges at the Social Security Administration, and auditors at the GAO, among others.

In her gag order to New York-based Judge Mimi Tsankov, who serves as NAIJ’s president and Samuel Cole an immigration judge in Chicago who is NAIJ’s executive vice president, McNulty, the “Chief Immigration Judge” couldn’t even use the word “union” to refer to NAIJ, calling it a “group.” The gag order requires NAIJ’s leaders to seek Justice Department approval “to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).” In addition to the gag order issued on February 15, the union leaders met with McNulty regarding her directive at the end of February.

In her order, McNulty used as a rationale for her action a 2020 decision by the Federal Labor Relations Authority (FLRA) to strip the union of collective bargaining rights.  However, the Biden administration and the DOJ made it clear when they took office in 2021 that they didn’t support the effort to limit the rights of judges’ union and they removed the complaint filed by Attorney General Barr’s DOJ.

“Just because a highly partisan decision by the FLRA’s board, that is likely to be reversed, limited NAIJ’s ability to collectively bargain, doesn’t mean that NAIJ and its national union IFPTE can’t meet and confer with the DOJ, provide legal services to our members, have officers serve on professional committees, speak to the media, offer training and other services a union provides,” says Biggs. “In fact, for the past four years, NAIJ, with assistance from IFPTE, has provided all of that. We give judges a voice. Judge Tsankov regularly speaks to reporters and recently testified before Congress.  This is an attempt to limit what the press and public know by placing a gag over the mouths of the judges on the front lines. The only thing that has changed in the past four years is an overreach by a federal bureaucrat.”

NAIJ has repeatedly sounded the alarm on the size of the backlog, the need for translators, raised courtroom security concerns and other issues related to immigration adjudication. It has been a strong advocate for judicial independence and questioned why the immigration courts are attached to the Department of Justice, rather than being placed in an independent agency. The National Press Club recently invited both Tsankov and Cole to speak at a news conference on “the pressures of the migrant crisis on the federal immigration court system.”

“We believe that this order and un-American, anti-union act of censorship by McNulty will lead to Congressional hearings,” said Biggs. “Until this matter is resolved, the judges’ national union, IFPTE, will act as the voice for the immigration judges. McNulty may try, but the nation’s immigration judges won’t be silenced.”

The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court. The union is an affiliate of the International Federation of Professional and Technical Engineers and the AFL-CIO.

[REMINDER: By law, Attorney General Garland controls EOIR.]

[NOTE: Gag order to NAIJ’s president and vice president follows.]

From: Chief Immigration Judge, OCIJ (EOIR)
Sent: Thursday, February 15, 2024 11:53 AM
To: Tsankov, Mimi (EOIR) , Cole, Samuel B. (EOIR) 
Cc: Weiss, Daniel H (EOIR) < Luis, Lisa (EOIR), Young, Elizabeth L. (EOIR) < Anderson, Jill (EOIR)
Subject: Public Engagements and Speaking Requests

Dear Judges Cole and Tsankov:

From recent awareness of your public engagements, I understand you are of the impression that your positions in the group known as the National Association of Immigration Judges (NAIJ) permit you to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews) without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary. The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present. Please consider this email formal notice that you are subject to the same policies as every EOIR employee. To ensure consistency of application of agency policies—and prevent confusion among our staff—please review the SET policy and work with your supervisor to ensure your compliance with it, effective immediately. 

Thank you,

Sheila McNulty
Chief Immigration Judge

Executive Office for Immigration Review • Department of Justice