Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
NAIJ, Aug. 12, 2019
"Trump Administration Seeks to Silence Federal Immigration Judges’ Union
DOJ Files Legal Documents to End the Labor Rights of Judges
Retribution for Speaking Out and Exposing Problems in the Courts
Judges Make Bipartisan Appeal Asking Congress to Create an Independent Court Free From Political Influence
On Friday, August 9, the U.S. Department of Justice filed legaldocuments with the Federal Labor Relations Authority (FLRA) seeking to eliminate therights of federal Immigration Judges (IJs) to be represented by a union. The petition filedby the administration asserts that IJs are “management officials” who formulate andadvance policy.
“This is nothing more than a desperate attempt by the DOJ to evade transparency andaccountability, and undermine the decisional independence of the nation’s 440Immigration Judges,” said Judge Ashley Tabaddor, an Immigration Judge who hearscases in Los Angeles, speaking in her capacity as the president of the NationalAssociation of Immigration Judges (NAIJ). “We are trial court judges who makedecisions on the basis of case specific facts and the nation’s immigration laws. We do notset policies, and we don’t manage staff,” she added.
The nation’s immigration courts are not part of the judicial branch of the government.The courts where immigration cases are heard are managed by the DOJ, allowing the nation’s chief prosecutor, the U.S. Attorney General, oversight authority and the power tohire, fire, and control the judges who preside over immigration hearings.
Over the past two years, NAIJ has been highly critical of the administration’s moves tocreate a quota of 700 cases per year for every IJ and to pressure judges to process casesfaster, irrespective of the law and the facts of the case. The NAIJ has also documentedand publicly commented on how the government shutdown earlier this year added to thecase backlog. Other issues raised by the NAIJ during the Trump years have includedchallenges to the Attorney General’s stripping IJs of needed docket managementauthority and depriving IJs of adequate support staff and resources such as interpreters,courtrooms, law clerks, and access to current technology. The move to decertify NAIJ isa clear effort to thwart criticism.
“It’s absurd that anyone would consider us managers,” said Tabaddor. “We don’t evenhave the authority to order pencils.”
This is not the first time that the DOJ has floated the theory that Immigration Judges aremanagers. Two decades ago, the DOJ made a similar attempt at decertifying the judges’union. In 2000, the FLRA ruled at that time that IJs do not act as managers. Since thatdecision, the role and responsibilities of IJs has further been reinforced as trial judgesrather than as managers. In the last two years, for example, the DOJ has eliminated anyopportunity for IJs to serve in an advisory capacity to management officials and hasrepeatedly refused even to consult NAIJ on decisions affecting daily court operations.Additionally, the docket schedule of each IJ is micromanaged to advance lawenforcement priorities rather than priorities or scheduling set by an individual judge.
NAIJ is affiliated with the International Federation of Professional and TechnicalEngineers, a much larger union that represents thousands of highly-educated federalemployees including NASA rocket scientists, engineers employed by the U.S. Navy andthe Army Corp of Engineers, and administrative law judges who hear cases involvingSocial Security claims. According to IFPTE’s president Paul Shearon, “This is nothing more than union busting plain and simple, and part of a disturbing pattern. The WhiteHouse has signed a series of executive orders that limit the ability of federal unions toraise questions about abuses and inefficiencies, and they have tried to hinder a union’sability to fully represent federal workers who are often stuck in a bureaucratic maze.”Added Shearon, “This administration doesn’t want to be held accountable, and theyespecially don’t want anyone looking over their shoulder on immigration issues.”
“It’s in the best interests of the American people for judges to hear cases based solely onthe law and the facts presented, free from political considerations,” said Judge Tabaddor.“This is not a Democrat or Republican or a left, right issue.” NAIJ has long advocatedfor Immigration Judges to be placed in an independent agency, similar to the nation’sbankruptcy and tax courts, rather than under the control of the DOJ. In recent months,this move to create an independent agency to operate the immigration courts has beengaining traction on both sides of the aisle in Congress.
“We think many on Capitol Hill, from both parties, will oppose this effort to mute thenation’s Immigration Judges,” said Tabaddor. “When Congress returns in September, wewill redouble our efforts to maintain judicial independence and due process through thecreation of an independent court. The DOJ’s actions, designed to silence judges and theirunion, further demonstrates why judges who hear immigration cases need to be placed inan independent agency. Our rallying cry as we make the rounds in the halls of Congresswill be ‘remember August 9’.”
The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntaryorganization formed with the objectives of promoting independence and enhancing theprofessionalism, dignity, and efficiency of the Immigration Court."