Union for Federal Immigration Judges Battling for Survival and Voice

As the prospect of a second Trump administration looms, the National Association of Immigration Judges (NAIJ) finds itself embroiled in two significant legal battles aimed at securing the rights and protections of immigration judges across the nation. This week marks a crucial moment for the union, representing the bulk of the 734 immigration judges in the U.S.

The legal struggles began in 2020, following actions taken under the Trump administration that sought to limit the independence and voice of immigration judges. Unlike other federal judges, immigration judges are employees of the Executive Office for Immigration Review (EOIR), an agency within the Department of Justice. Advocates allege that this relationship presents inherent conflicts of interest, given that the Justice Department also prosecutes immigration-related cases.

This week, NAIJ is advocating before the Federal Labor Relations Authority (FLRA) to restore union protections that were rescinded during the previous administration. On another front, attorneys from the Knight First Amendment Institute have presented arguments at the 4th Circuit Court of Appeals, challenging an EOIR policy that restricts judges from publicly discussing immigration matters. They argue that this policy infringes upon the judges’ First Amendment rights.

These challenges are part of a larger initiative that some believe aims to diminish the judges’ autonomy. The previous administration implemented various measures, including setting quotas and mandating judges to prioritize certain cases, further complicating their already burdened caseloads.

Importantly, the EOIR regulations barred immigration judges from engaging with the public or the media regarding immigration issues without prior approval. “For years, members of NAIJ regularly engaged in public discourse concerning immigration law, contributing to public understanding,” Judge A. Ashley Tabaddor emphasized in 2020.

The NAIJ asserts that the union has represented immigration judges since 1971 and has consistently raised concerns over a congested immigration system. Recent data indicates a staggering backlog of immigration cases, swelling from 1.2 million in 2020 to over 3.7 million today, including around 1.7 million asylum cases, according to the Transactional Records Access Clearinghouse.

In Arizona alone, approximately 309,000 immigration cases await a decision, with a significant portion stemming from individuals who entered the U.S. without proper inspection. “The forecast suggests that these numbers will continue to grow with the incoming administration,” warned the NAIJ.

Despite the FLRA’s decision to decertify the NAIJ and curtail the judges’ union rights, the organization continues to advocate for judges through a less formal engagement process. However, this lack of formal organization has led to instances where judges faced intimidation regarding their communication with lawmakers and the media.

The Biden administration and House Judiciary immigration subcommittee leaders have criticized these “gag orders,” which the U.S. Office of Special Counsel indicated violate statutory protections for whistleblowers. Matt Biggs, president of the International Federation of Professional and Technical Engineers, highlighted that fairness for judges is essential to ensure transparency in immigration adjudication.

“It is vital that immigration judges be treated fairly, that they have a voice, and that their rights are fully restored,” Biggs asserted.