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

3 minute read

Signage is seen at the headquarters of the United States Department of Justice (DOJ) in Washington, D.C., U.S., May 10, 2021. REUTERS/Andrew Kelly - RC24DN9WINRX

  • Immigration judges are management employees who can't unionize, labor panel had said
  • AG Merrick Garland faced pressure from unions and Democrats to recognize union

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(Reuters) - The U.S. Department of Justice has dropped its opposition to an immigration judges union's bid to overturn a labor panel's Trump-era ruling that decertified the union.

DOJ's Executive Office for Immigration Review (EOIR) on Friday withdrew its opposition to the National Association of Immigration Judges' motion for reconsideration of the November ruling, which said the judges were management employees who cannot unionize under federal law.

The move came as DOJ and Attorney General Merrick Garland faced pressure from Democrats in Congress and other labor unions to withdraw opposition to the pending motion for reconsideration and voluntarily recognize the NAIJ and restore its ability to collectively bargain on behalf of its members.

San Francisco-based Immigration Judge Dana Marks, the president emeritus of the NAIJ, said on Monday that DOJ withdrawing its opposition may put pressure on the FLRA to reverse its ruling, since it means that no party supports the authority's position.

Marks, who said she was speaking in her capacity as an officer of the NAIJ and not as a judge, said the FLRA decision was deeply flawed and should be overturned.

"I'd flunk a first-year law student who didn’t realize that we are a trial court. We don’t set precedent and we don’t influence policy," she said.

Immigration judges, who are employees of EOIR, preside over matters involving immigrants' rights to enter or remain in the United States. About 470 judges are members of the NAIJ, which is represented in the case by Latham & Watkins.

In a 2000 case, the FLRA rejected the claim that all immigration judges are management employees under the Federal Service Labor-Management Relations Statute because they make new policy by issuing decisions.

The agency at the time said the judges merely apply the law, and their rulings are subject to review by the Board of Immigration Appeals.

DOJ in a 2019 petition said that since then, the number of cases heard by judges has skyrocketed. As a result, far more of their decisions are never reviewed by the BIA and can set precedent for future cases, the department argued.

The petition came amid vocal opposition by the NAIJ to various Trump-era policies, including rules limiting immigration judges' discretion and requiring them to seek permission before speaking publicly or publishing writings about their jobs.

The FLRA's regional director in Washington D.C. disagreed with DOJ last July and dismissed its petition.

But the FLRA in a 2-1 decision in November decertified the union, saying immigration judges influence DOJ policy through the decisions they render in individual cases.

FLRA Member Ernest DuBester, the panel's only Democrat, in a lengthy dissent accused his colleagues of acting in haste and inexplicably parting with longstanding precedent.

Biden in January designated DuBester as the chair of the FLRA, and formally nominated him for the post last week.

The case is U.S. Department of Justice Executive Office for Immigration Review and National Association of Immigration Judges, Federal Labor Relations Authority, No. WA-RP-19-0067.

For EOIR: Charles Barksdale of the Executive Office for Immigration Review

For the NAIJ: Margaret Tough of Latham & Watkins, Richard Bialczak

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.

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