Immigration judges sue DOJ over restrictions on speaking publicly

Complaint brought on behalf of 460 immigration judges

A coalition of federal immigration judges is suing the Justice Department, claiming they have been unfairly prevented from speaking to the public about their concerns over the coronavirus pandemic’s impact on immigrants in custody.

The complaint, filed Wednesday in the Eastern District of Virginia, was brought on behalf of approximately 460 immigration judges by the Knight First Amendment Institute at Columbia University. It alleges that the Trump administration has imposed new rules blocking judges from speaking out in their personal capacity. The lawsuit claims this violates civil service policies.

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“In recent months, immigration judges have also been prevented from commenting on the impact of the COVID-19 pandemic on the immigration courts and detained immigrants,” the lawsuit says. “Despite repeated calls that they be temporarily closed, nearly all of the nation’s 69 immigration courts and adjudication centers have remained open for proceedings involving detained immigrants.”

It says that a 2017 policy requiring a preapproval for judges wishing to speak publicly was replaced this year by a “still more restrictive one” that categorically prohibits judges from speaking in their personal capacity about immigration law or policy or about Executive Office for Immigration Review (EOIR) programs and policies. On other topics, judges still require EOIR pre-approval.

Those 69 courts across the country hold detention hearings, consider asylum requests and rule on appeals over deportation. Much of their work was shut down or suspended due to the outbreak of the coronavirus pandemic in March.

The lawsuit notes that the Department of Justice’s EOIR recently announced that it intends to resume hearings for immigrants not in detention, and to suspend interim rules that allow for the filing of court documents by email.

“These changes have already had, and will continue to have, profound implications for public health, but few immigration judges have felt free to speak out,” the suit says.

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It says that a handful of judges have been allowed to speak in their capacity as part of the National Association of Immigration Judges (NAIJ) as union representatives, but “hundreds more remain silenced.”

“As the Supreme Court has repeatedly held, people do not surrender their free-speech rights when they accept government employment,” the lawsuit says. “They retain their rights, as citizens, to speak on matters of importance, and the government can silence them only if it can show that its interest in doing so outweighs the employees’ interests in speaking and the public’s interest in hearing what they have to say,”

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Immigration judges are employees of the Justice Department and are not members of the federal judiciary. The Trump administration has had a tense relationship at times with groups representing the judges, and last year petitioned to decertify the NAIJ, claiming the judges meet the statutory definition of “management officials, who are not allowed to be part of a union.

The NAIJ had complained about the number of cases judges were expected to handle as part of efforts to clear out a backlog of pending immigration cases.