Immigration judges' union sues DOJ over public speaking policy

The National Association of Immigration Judges is suing the Department of Justice over restrictions that cover public speaking about immigration issues.

The lawsuit comes at a time when the Trump administration's immigration policies have drawn scrutiny, especially in light of the COVID-19 pandemic, which has also impacted federal agencies' ability to function and oversee immigration.

The NAIJ, which is affiliated with the International Federation of Professional and Technical Engineers, is claiming that a policy that the Executive Office of Immigration Review (EOIR) put into effect at the beginning of 2020 restricted judges' already limited ability to speak at public events such as bar associations, law schools and colleges about the immigration court system.

NAIJ filed on July 1 in the Eastern District Court of Virginia and names EOIR Director James McHenry III and Attorney General William Barr as defendants in their request for injunctive relief.

The Knight First Amendment Institute is supporting the NAIJ in the lawsuit.

"Under this new policy, which remains in force today, immigration judges are categorically prohibited from speaking in their personal capacities about immigration law or policy or about EOIR programs or policies," the suit states.

"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."

In September 2017, the EOIR enacted a policy that required certain employees to obtain approval before speaking in public about immigration law in certain cases. The new policy, which went into effect in January 2020, further expands those restrictions.

In its suit, the NAIJ claims that the policy is a violation of judges' First Amendment rights.

"The 2020 Policy applies to all speech that immigration judges engage in in their personal capacities, whether or not that speech could reasonably be expected to interfere with EOIR's operations. Moreover, the policy lacks constitutionally required procedural safeguards, such as clear standards and a definite time limit for decision."

In addition to violating judges' free speech, the NAIJ claims that the policy violates the judges' Fifth Amendment rights in not clearly defining the criteria by which speaking engagement requests are approved or denied.

"The policy invites arbitrary and discriminatory enforcement, and [fails] to give immigration judges fair notice of what standards will be applied in reviewing their requests for preapproval."

The policy requiring preapproval to publicly speak is particularly odious, the NAIJ argued in its suit, because of the Trump administration's lack of transparency around its decision to keep immigration legal facilities open during the pandemic.

"The 2020 Policy has prevented immigration judges from commenting on the impact of the COVID-19 pandemic on immigration courts and detained immigrants," the complaint read.

"Most of the nation's 69 immigration courts have remained open throughout the pandemic, and many immigration judges have privately expressed concern about that fact. With the exception of union representatives whose speech is protected by federal labor law, however, few of these judges have been free to express their concerns publicly."

NAIJ is seeking a preliminary injunction to block the 2020 policy as well as the still-operating provisions of the preceding 2017 policy.