The nation’s immigration judges have sued the Trump administration to overturn a rule that bans them from speaking publicly on law and policy, asserting a right to free speech at a moment when the immigration system has come under intense scrutiny.
The federal lawsuit, filed in Virginia on Wednesday, follows a series of increasingly restrictive directives that have effectively silenced judges from discussing the operation of the courts over which they preside. Judges can be disciplined or even fired for talking about immigration-related issues.
“We are in the midst of an urgent public debate about immigration reform in this country, and some of the most crucial voices in that debate are being silenced,” said Ramya Krishnan, a staff lawyer at the Knight First Amendment Institute at Columbia University, which filed the lawsuit on behalf of the judges.
A spokesperson at the Executive Office for Immigration Review, the Justice Department arm that runs the courts, said the agency does not comment on pending litigation.
More than 460 judges, including six in Philadelphia, are assigned across the country to 69 immigration courts, most of which have remained open despite the cancellation of thousands of hearings during the pandemic. Judges have been blocked from commenting on important issues such as the impact of COVID-19 on detained immigrants who fear for their health and lives, the lawsuit noted.
For years, EOIR allowed judges to speak about immigration in their personal capacities, provided they made it clear they were not speaking on behalf of the agency, the suit noted.
In 2017, EOIR changed the policy to require that judges get prior approval before they speak. Then, in January, EOIR went further, forbidding judges from publicly discussing immigration law or policy. On all other topics, judges are required to obtain advance EOIR approval, the suit said.
The restrictions have upset judges who see informing the public about the immigration system as an important part of their jobs, especially now when the courts are stressed, facing a backlog of nearly 1.2 million cases, according to a tracking system maintained by Syracuse University. They’ve fought what they see as interference in the judiciary by the Trump administration, which is now trying to decertify their union, the National Association of Immigration Judges.
The suit challenges what it calls unconstitutional prior restraint on judges who wish to write or speak publicly in their personal capacities. NAIJ seeks a preliminary injunction to stop EOIR from continuing to enforce the policy.
“Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society,” said Los Angeles Immigration Judge Ashley Tabaddor, president of the NAIJ. “This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process.”
The restrictions have largely stopped judges who might want to talk to the news media or to engage people at civic gatherings, universities, conferences, and bar association events.
“Consistently throughout this administration, the EOIR has tried to wall off the judges from the community,” said Philadelphia immigration attorney Brennan Gian-Grasso, a past president of the city chapter of the American Immigration Lawyers Association. “EOIR is saying their professional opinions are subordinate to a political narrative.”
The public suffers, he said, because judges “are in the best position to explain very, very complicated law.”
In the past, judges, government attorneys and immigrant lawyers would exchange ideas at legal-education events. It’s not that everyone agreed. Then and now, immigration judges run the gamut of political views and legal approaches. But the candid sharing of ideas helped the court system run more efficiently, Gian-Grasso said.
“The immigration judges were absolutely meticulous about saying, ‘This is my opinion on the matter, it doesn’t reflect official policy.’ They were so professional. … The current administration wants immigration law to happen in the dark, and this is another example of how they further that goal.”
Unlike U.S. District Court judges, who serve on the bench for life, immigration judges can be hired and fired like any other federal employee. They’re ultimately responsible to the attorney general, the nation’s chief law-enforcement officer, a political appointee with the power to declare that judges must follow his decisions.
Judges can have little discretion, and in some cases cannot even terminate legal proceedings in a case without approval from ranking government lawyers. Yet their day-to-day responsibility is enormous, as they’re often called on to make what can be life-and-death decisions for migrants facing deportation.
Some judges have quit or retired early.
Philadelphia Immigration Judge Charles Honeyman retired this year at age 70, calling off plans to work a few more years, amid disappointment over what he saw as Trump administration pressures on the courts. He cited unrealistic docket demands and quotas to quickly clear cases, a lack of concern for meaningful due process, and the continuing transformation of the immigration appeals bureau into “a Politburo-like rubber stamp.”
The courts’ leadership in Washington can reach suddenly and deeply into local cases.
For instance, in 2018 the Justice Department replaced a Philadelphia immigration judge who had asked for more information in a deportation case, inserting a new jurist who quickly ordered the defendant removed from the United States. Fifteen retired judges signed a letter saying the ouster of Judge Steven Morley from the case marked another attack on judicial independence.
The Supreme Court has repeatedly held that “people do not surrender their free-speech rights when they accept government employment,” the lawsuit stated. “They retain their rights, as citizens, to speak on matters of public importance, and the government can silence them only if it can show that its interest in doing so outweighs the employee’s interests in speaking and the public’s interest in hearing what they have to say.”
The government may argue it must maintain the appearance of judges’ impartiality, but that interest would not sustain the policy, the lawsuit argues. The government’s interest in preserving impartiality is limited to avoiding bias, or the appearance of bias, toward parties in particular cases, the suit said.