Immigration judge union wins revival of challenge to DOJ gag policy

2 minute read

An American flag waves outside the U.S. Department of Justice Building in Washington, U.S., December 15, 2020. REUTERS/Al Drago

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  • Court revives case after union loses status
  • Lawsuit targets Trump-era policy barring public speaking

(Reuters) - A U.S. labor agency's decertification of the union representing immigration judges has led a federal appeals court to revive the union's challenge to a Trump-era policy barring the judges from speaking publicly about immigration policy.

A 4th U.S. Circuit Court of Appeals panel on Tuesday said that because the National Association of Immigration Judges (NAIJ) can no longer pursue its challenge in front of the Federal Labor Relations Authority (FLRA), the case can proceed in court.

The panel in April had ruled that the NAIJ was required to bring its free-speech claims to the FLRA, since the case implicated the union's collective bargaining agreement with the U.S. Department of Justice.

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But the FLRA days later formally decertified the NAIJ, nearly two years after ruling that immigration judges were management employees who cannot join unions.

The 4th Circuit on Tuesday granted the NAIJ's motion for rehearing, vacated its April decision and remanded the case to a federal judge in Alexandria, Virginia.

NAIJ President Mimi Tsankov, a New York-based immigration judge, said in an email that the union looks forward to pursuing its case. The Justice Department did not immediately respond to a request for comment.

Immigration judges, who hear deportation cases and bids for asylum and other kinds of immigration relief, are employees of DOJ and had been unionized for decades.

The FLRA in 2020 agreed with the Trump-era DOJ that immigration judges qualified as management employees because of their important policymaking roles. The union had argued that the judges merely apply federal law and do not create policy.

The Biden administration last year dropped DOJ's opposition to the union, but the FLRA in January denied the NAIJ's motion for reconsideration of the ruling that the judges could not be union members.

The union in its 2020 lawsuit says a policy adopted by DOJ that year violates their free-speech rights by imposing a total ban on speaking at public events about policy issues.

The case is NAIJ v. Neal, 4th U.S. Circuit Court of Appeals, No. 20-1868.

For the NAIJ: Ramya Krishnan of the Knight First Amendment Institute at Columbia University

For DOJ: Jennifer Utrecht

Read more:

Biden admin won't oppose bid to revive immigration judges union

Immigration judges challenge Justice Dept over policy gagging them from public speech

Labor board will take up DOJ's bid to dissolve immigration judges' union

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.