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Immigration Law

Will Biden/Garland Recertify the IJ Union?

Marcia Brown, American Prospect, Mar. 12, 2021

"The Trump administration’s manipulation of the immigration system went deeper than aggressive border policies and cruel detention practices. It also relentlessly pushed to rig the immigration court system to carry out Trump’s priorities.

Immigration courts, housed in the Department of Justice, are uniquely vulnerable to political interference. President George W. Bush stacked the Board of Immigration Appeals with judges favorable to his policies, as did President Obama. Under Trump, new BIA judges had asylum denial rates of 90 percent or higher. Overall, the Trump administration’s immigration judges administered denials at rates 20 percent higher than previous administrations, largely because of a series of steps it took to interfere in judicial discretion, docket management, and immigration and asylum case law.

The National Association of Immigration Judges (NAIJ), a union that represents the nation’s 500 judges, outspokenly opposed the administration’s efforts at every turn. In 2019, the Trump administration moved to decertify the immigration judges’ union, a move seen by most as an overt attempt to muzzle dissent. Last fall, the Republican-majority Federal Labor Relations Authority (FLRA) agreed to decertify, overturning 20 years of precedent and a recommendation by its own chief counsel. The lone Democratic FLRA member, Ernest DuBester, dissented. He is now FLRA chair.

The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.

... Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.

Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.

Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union."