SAN DIEGO – A 53-year-old union of immigration judges has been ordered to get supervisor approval to speak publicly to anyone outside the Justice Department, potentially quieting a frequent critic of heavily backlogged immigration courts in an election year.
The National Association of Immigration Judges has spoken regularly at public forums, in interviews with reporters and with congressional staff, often to criticize how courts are run. It has advocated for more independence and free legal representation. The National Press Club invited its leaders to a news conference about "the pressures of the migrant crisis on the federal immigration court system.”
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The Feb. 15 order requires Justice Department approval “to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).” Sheila McNulty, the chief immigration judge, referred to a 2020 decision by the Federal Labor Relations Authority to strip the union of collective bargaining power and said its earlier rights were “not valid at present.”
The order prohibits speaking to Congress, news media and professional forums without approval, said Matt Biggs, president of the International Federation of Professional & Technical Engineers, an umbrella organization that includes the judges' union. He said the order contradicted President Joe Biden's “union-friendly” position and vowed to fight it.
“It's outrageous, it's un-American,” said Biggs. “Why are they trying to silence these judges?”
The Justice Department and its Executive Office for Immigration Review, as the courts are called, did not immediately respond to requests for comments on McNulty's order, which was addressed to union leaders Mimi Tsankov and Samuel B. Cole.
Tsankov, the union president and a judge in New York, declined comment, saying a recent policy change prevented her from speaking to the media or anyone outside the Justice Department unless she sticks to approved “talking points.” Cole, the union's executive vice president and a judge in Chicago, said McNulty's order “bars me from speaking to you about this” without approval.
News organizations including The Associated Press have frequently sought comment from the judges union for stories on how the courts operate. Unlike civil or criminal courts, case files are not public and immigrants can close many hearings to the public to protect privacy. The courts are part of the Justice Department.
An exploding backlog that tops 3 million cases has judges taking five to seven years to decide cases, a potential incentive for people with weak asylum claims who can obtain work permits while waiting for decisions.
The Trump administration stripped the judges union of collective bargaining rights it won in 1979, eight years after it was founded. The Trump administration clashed with the union, which sought more independence and resisted a since-rescinded target for each judge to finish 700 cases a year.
The union hopes to regain bargaining rights from the federal board, said Biggs, whose organization has continued to advocate on its behalf. “We have not missed a beat representing them and that will continue,” he said.
McNulty, a career government official who became chief judge last year and oversees about 600 judges in 68 locations, indicated her order was a response to “recent awareness of your public engagements,” without elaborating.
Tsankov testified at a Senate hearing in October and speaks regularly with reporters. She was scheduled to appear with Cole at a National Press Club news conference in October, which was postponed.
Russell Dye, spokesperson for the House Judiciary Committee's Republican chair, Rep. Jim Jordan, said the Justice Department “is now censoring immigration judges because the Biden Administration doesn’t want the American people to know about its gross mismanagement of the U.S. immigration court system." He said the administration ”chose to try to restrict the free speech of immigration judges."
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Associated Press writer Farnoush Amiri in Washington contributed.