Immigration Judges Sue Over Restrictions on Speech

WASHINGTON (CN) — A group of immigration judges filed a federal lawsuit Wednesday claiming Justice Department rules prohibiting them from speaking in their personal capacities about their work and other immigration issues are unconstitutional.

The complaint, filed in the Eastern District of Virginia, outlines a growing interest in the immigration court system in the wake of many enforcement-related policies issue by the White House, which the judges say President Donald Trump has made a “signature issue of his administration.”

The National Association of Immigration Judges claims many of these policies limit their ability to close cases administratively and are detrimental in other ways, like forcing judges to conduct video conferences at tent facilities along the U.S.-Mexico border, as part of the Trump administration’s “Remain in Mexico” program.

The lawsuit also alleges Attorney General William Barr has subjected judges “to case completion quotas and other performance benchmarks” to address the backlog of more than 1 million pending immigration cases.

But the main focus of the complaint is limits on public speech, beginning with a policy enacted in 2017 by the Executive Office for Immigration Review, or EOIR, that requires preapproval for judges who want to speak at public events.

That policy was replaced in January with a more restrictive one that prohibits judges from “speaking in their personal capacities about immigration law or policy or about EOIR programs or policies,” according to the lawsuit.  

“On all other topics, immigration judges may speak publicly only if they obtain EOIR’s prior approval. These new restrictions apply to all public speaking and writing as well as to communications with members of the news media,” the complaint states.

The judges say the limits on their speech were implemented “at a time of intense scrutiny of the nation’s immigration system.” They are asking for an injunction blocking enforcement of the rules.

They claim their inability to speak publicly about immigration courts and detainees during a global pandemic has a negative impact on public health.

“While much of the country has observed strict social-distancing policies to reduce the spread of novel coronavirus, most immigration courts remain open for hearings, at least for those involving detained migrants,” the complaint states. “There is continuing public concern about the safety of detained migrants and of the immigration judges, attorneys and court staff who must attend court to ensure their cases move forward.”

The immigration judges further allege preapproval requests for public speaking are often denied without explanation.  

According to the lawsuit, the judges and EOIR reached an agreement in 2018 for the creation of a guide for speaking engagement requests that included a five-day response time for approval or denial, but it was never published.

One immigration judge who submitted a speaking request in April 2018, four months in advance of the Practicing Law Institute panel she planned on attending, was denied just three days before the event, according to the suit.

“Indeed, although EOIR is required to provide immigration judges with reasons for denials, in many instances it has not done so,” the complaint states.

This is not the first legal showdown between the White House and the National Association of Immigration Judges. Last August, the Trump administration moved to decertify the judges union in a petition with the Federal Labor Relations Authority. The FLRA has yet to issue a decision on that petition, after holding a hearing earlier this year.

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