Immigration judges accuse Justice Department of muzzling them

A lawsuit to be filed Wednesday is the latest escalation in the feud between immigration judges and the Justice Department, which oversees the US immigration court system.

As the administration continues to crack down on immigration to the US, the Justice Department has imposed case quotas to speed cases along, given more power to the director charged with overseeing the courts, reversed rulings, curtailed judges' ability to exercise discretion in some cases and moved to decertify the union of immigration judges.

Over time, those actions have prompted some immigration judges, some of whom were retirement eligible and had decades of experience, to leave the department.

The policy in question in Wednesday's lawsuit prohibits immigration judges from participating in public speaking engagements, among other things -- a move that the union, represented by Knight First Amendment Institute, argues is unconstitutional.

"Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society," said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, in a statement. "This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process."

The issue has taken on renewed urgency amid the coronavirus pandemic, as immigration judges who are continuing to oversee some cases "remain silenced," the lawsuit says.

The Justice Department's Executive Office for Immigration Review previously allowed immigration judges to speak in their personal capacities, with the caveat that they weren't speaking on behalf of the agency and with preapproval, which was routinely granted. Judges spoke at schools, universities and bar associations about the immigration courts, the lawsuit says.

But under President Donald Trump, the agency has taken more restrictive steps by implementing additional review procedures and rules that have essentially barred immigration judges from speaking about immigration, among other issues.

According to the lawsuit, those in violation of the policy "face a range of disciplinary actions, including reprimand, suspension, and even removal from the federal service."

"This policy is stifling the voices of immigration judges at a time when they are especially important," said Ramya Krishnan, staff attorney at the Knight First Amendment Institute.

"Judges have unique insights to offer about the recent and proposed changes to the immigration legal system and their effects on that system's ability to operate independently and fairly," she added.

Among the examples provided in the lawsuit is one of an immigration judge who sought permission to speak to a seventh-grade class about asylum in 2019. His supervisor approved the request and forwarded it to the speaking engagement team, which never got back to him. The judge canceled the middle school visit.

In another case, an immigration judge submitted a request to participate on a Practising Law Institute panel on immigration and asylum law, but her request was rejected despite her having participated in the same panel the previous year.

The lawsuit, filed in the Eastern District of Virginia, underscores that it is important to allow immigration judges to speak amid the litany of changes to the nation's immigration system. Given the policy, associations, law school clinics and organizations that once invited immigration judges to speak have stopped inviting them.

"The effect is to deny the public access to insights about how recent changes to immigration law and policy are working in practice, and to create the perception that EOIR employees uniformly support the administration's policies," the complaint reads.