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As “of counsel” and on behalf of Solow, Isbell & Palladino, LLC (SIP), welcome to another blog exploring issues impacting the nation’s Immigration Courts. In this blog, I will review the status of DOJ’s efforts to decertify NAIJ as a legally recognized collective bargaining unit. PLUS, BONUS POLICY ALERTS: Philadelphia Immigration Court remains “open” with only a handful of cases going forward; Virginia federal court rejects NAIJ’s suit over public speaking restrictions; appeal will follow; Attorney General Barr continues to pack Board of Immigration Appeals (BIA) with hardliners whose asylum denial rates exceed 90% and former prosecutors from the Atlanta Immigration Court known by many as an “Asylum Free Zone.”

As a recognized union, NAIJ has been able to represent and advocate on behalf of Immigration Judges (IJs). The union has supported IJs in their struggle for increased independence from political intervention and worked to prevent the further erosion of what limited independence the current flawed structure provides. These overall efforts by NAIJ are critical in the battle to confront and expose the Trump administration’s policies to weaponize the IJs and the courts as foot soldiers in support of a policy of drastically reduced immigration across all categories.

Fortunately, the DOJ’s second attempt in 20 years to decertify NAIJ has failed, at least in the initial decision by the federal agency charged with protecting the workplace rights of federal employees. As reported by NAIJ, on July 31, 2020, Susan S. Bartlett, Washington, D.C. regional director of the FLRA, found no merit in DOJ’s claim that immigration judges are managers who should be denied the right to form a union and bargain collectively with their employer. 

Bartlett found that IJs are not management officials in any sense and do not create or influence the policies of DOJ’s Executive Office for Immigration Review (EOIR). The regional director examined the duties and responsibilities of IJs and found that they had not changed since the prior unsuccessful petition in 2000. 

While acknowledging that IJs’ duties remain entirely nonsupervisory in nature, DOJ attorneys had argued that regulatory changes now required that IJs’ factual finding be subject to clearly erroneous review by the Board of Immigration Appeals (BIA). Consequently, DOJ argued that such changes effectively elevated IJ decisions to a level that they influenced agency policy, making IJs management officials and thus ineligible to unionize. However, this argument was rejected by the regional director who concluded that such deference to factual findings does not turn judges into management officials. All IJ decisions are subject to BIA appellate review, are accorded no precedential weight, and thus do no create or influence agency policy.  

According to the NAIJ President, Ashley Tabaddor, in the press release following the FLRA decision, “DOJ’s efforts to decertify the union demonstrates, once again, the structural flaw of having the immigration court housed in a law enforcement agency like the DOJ. The only lasting solution is the creation of an independent immigration court.” 

The goal should be judicial independence, providing fairness to all litigants, and removing the incentive for political intervention at both the trial and administrative appellate levels. There is in fact growing support for such worthy goals from a broad coalition of organizations, including NAIJ, the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, and even the conservative-leaning Cato Institute. This advocacy supports the establishment of U.S. immigration courts, along with an appellate division under Article 1 of the U.S. Constitution, similar to the U.S. bankruptcy and tax courts.

However, despite the encouraging decision of the FLRA regional director, DOJ has 60 days to request that the full FLRA board review this decision. Hopefully, as with the earlier petition, the sound and well-reasoned decision of the regional director will be sustained, permitting NAIJ to continue as the IJs’ voice in collective bargaining, resolving grievances, and advocating in support of judicial independence.

BONUS POLICY ALERTS:

The Philadelphia Immigration court remains “open,” but despite the volume of pending cases, only a handful are going forward. For now, no master calendars are being scheduled, which means that more than four months of cases have to be rescheduled in addition to all of the hundreds or thousands of new cases that have been filed with the court. Plus, DHS/ICE in Philadelphia (as is the case around the country) has begun filing motions to recalendar the several hundred thousand cases that had been administratively closed by IJs prior to Castro-Tum

Regarding the individual dockets, the six IJs currently work one week in the court and one week at home doing telework, although there is clearly not enough work to fill a full day at home. However, because of age and health accommodations, one judge is not hearing cases at all, one works just a half-day during the non-telework week, and the others are apparently hearing about two cases per day during the non-telework week. When merits hearings do go forward, the IJ appears in one courtroom and connects with the respondent, counsel, and interpreter (if necessary) who are present in an adjacent courtroom. As of now, the DHS/ICE counsel has been appearing telephonically. It is my understanding that this arrangement has been extended through October.

NAIJ’s suit in a Virginia federal court, seeking to pause EOIR’s restrictive speaking policy imposed on IJs was rejected by a judge on August 6, 2020. The judge concluded that proper jurisdiction for such a challenge was an administrative court and, thereafter, in the U.S. Court of Appeals; an additional conclusion was that NAIJ had not shown that it would be irreparably harmed. 

EOIR’s increasingly restrictive policy reached a point in January where IJs could no longer seek permission to speak even in their personal capacity about any issue relating to immigration law or policy in any forum. NAIJ had filed a motion for a preliminary injunction on the same day its complaint was filed.  

But the federal judge concluded that since NAIJ’s lawsuit involved a policy that is subject to collective bargaining similar to its earlier version in 2018, that the currently alleged constitutional claims are merely, by their nature, labor-related disputes that must be heard initially by the administrative forum established by Congress. Thus, the judge held that since NAIJ has not shown it is likely to succeed on the merits, it likewise has not shown it would be irreparably harmed should the challenged policy be permitted to continue in the interim.

In response, Columbia University’s Knight First Amendment Institute, counsel for NAIJ, disputed the court’s conclusion that IJs could pursue their free speech claims through administrative channels. On the contrary, NAIJ’s counsel asserted that the instant decision effectively deprives IJs of any forum in which to raise their First Amendment arguments.

The NAIJ has indicated its intention to appeal this decision.

Attorney General Barr continues to pack the BIA with hardliners with over 90% asylum denial rates and former prosecutors from the Atlanta Immigration Court, known by many as an “Asylum Free Zone.” The three new appointees bring the BIA to a full 23 members. The Trump administration has now increased the size of the BIA by six, with appointees coming exclusively from backgrounds that indicate a likelihood of decisions reflecting extremely restrictive interpretations of the law. 

Equally as troubling, curious, and somewhat bizarre was the leaked policy to CQ Roll Call announced in June, reassigning nine pre-Trump BIA members who had recently rejected buyout offers from DOJ. The internal email viewed by CQ Roll Call states: “This is to inform you that effective June 8, 2020, you will be reassigned from your current position as Board Member (Senior Level) to the Appellate Immigration Judge position.”

We now learn that the difference between “board member” and “appellate immigration judge” roles extends to pay ranges, leave policy, and that “appellate immigration judges” also hear cases at both the trial and appellate levels. 

Critics rightly point to potential conflicts of interest that such a structure is likely to trigger. On the other hand, perhaps this is simply a not so subtle move to demote BIA members who will be increasingly assigned to hear cases from the huge trial level backlog and be removed from hearing appellate level cases from which BIA precedents are selected. 

In attempting to rationalize these reassignments and restructuring of the BIA, an EOIR spokeswoman explained to CQ Roll Call that the reassigned Board Members, now “appellate immigration judges” include “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets.” This explanation makes no sense; it merely contains words and phrases that could have been picked out of a hat. Whose skills are they talking about? This was a demotion of the most experienced Board Members. Moreover, what could these demotions have to do with technology or labor markets?  Most of us are too astute to fall for such disingenuous Orwellian nonsense. Pure and simple, these were ideologically driven demotions, euphemistically characterized as reassignments.

Thank you for taking the time to consider the important issues and information discussed in this submission.