Eric Risberg/AP Photo
A woman holds a child in a line going around the block while waiting to enter a U.S. immigration office with numerous courtrooms, January 31, 2019, in San Francisco.
Last Thursday, the National Association of Immigration Judges (NAIJ) filed a petition with the Federal Labor Relations Authority (FLRA) to recertify its union status, which was stripped away in the waning days of the Trump administration. It’s a case where President Biden had to push past his own Department of Justice and a Senate confirmation that took nearly a year in order to get the union activated and to live up to his self-professed image as the most pro-union chief executive in history.
In 2019, the Trump administration’s Justice Department petitioned the FLRA to decertify the NAIJ, arguing that immigration judges were managers and therefore ineligible to be unionized employees. Nearly two decades earlier, when President Clinton’s DOJ tried decertifying the union in 2000, the FLRA rejected the petition. The 2000 FLRA explained that the same arguments about judges being management were unfounded, because the judges were not the final arbiter of the outcome of immigration cases; that decision was left to the Board of Immigration Appeals.
But the day before the 2020 election, the FLRA reversed 20 years of precedent. “[C]hanged circumstances existed to support a re-examination,” the 2020 decision stated. “As such, we grant the application for review, find that [immigration judges] are management officials, and, therefore, exclude them from the bargaining unit.” A spokesperson for NAIJ rejected the logic of the ruling, telling the Prospect that immigration judges don’t even have the authority to order their office supplies.
In the early months of the Biden administration, the Prospect reported that Biden had lagged to take action to recertify NAIJ. But pressure mounted on Biden throughout 2021 from labor groups, legislators, and legal scholars to heed his executive order on protecting federal employees.
In a June 2021 letter to Attorney General Merrick Garland, then-NAIJ president Amiena Khan called on the DOJ to restore collective-bargaining rights for NAIJ members. “President Biden has committed to restoring labor unions and fair working conditions for federal employees. We ask the DOJ to do its part in supporting that objective by taking all necessary actions to ensure that the NAIJ remains a union.”
The calls for action eventually worked. In December 2021, the Biden administration recognized the immigration judges’ union. Yet despite this support, DOJ attorneys explained months earlier that the FLRA’s decision was still final until it was reversed. “As a result of the authority’s November 2020 ruling, there are no longer any employees in the bargaining unit. As there are no employees in the bargaining unit, in essence, NAIJ is defunct.”
Until May, Republicans still held the majority on the FLRA, meaning that the chances of overturning the decision and a successful filing for recertification were slim. But Biden’s Democratic nominee Susan Tsui Grundmann, who first received the nomination last August, was finally confirmed on May 12 by a 50-49 vote. This created a Democratic majority on the three-person FLRA board.
The union, NAIJ, is composed of over 500 immigration judges across the country, currently facing a backlog of 1.8 million cases. Since NAIJ’s 1979 certification, the union has operated as a check to the Department of Justice’s rotating personnel. The changing nature of DOJ staff, according to NAIJ representatives who spoke to the Prospect, creates an environment where due process can be compromised by the political agenda of appointees at the DOJ.
Even before the path to recertification, the DOJ had taken steps to address issues that favored NAIJ. For example, last October, the DOJ dropped Trump-era case quotas for immigration judges. Judge Mimi Tsankov, president of the NAIJ, explained that such performance metrics demanded by the Trump DOJ ensure that “due process goes out the window.” However, Tsankov made it clear that only with a union could immigration judges properly serve the public. She explained that staff morale across immigration courts has drastically dropped, citing the lack of resources, compounded by understaffing.
However, Tsankov explained that she’s optimistic for the NAIJ’s recertification because of the Biden administration’s gradual steps to reverse the Trump-led FLRA’s original November 2020 ruling. The ruling has not been formally reversed yet, but the recertification filing could force the issue. In the unforeseen instance that NAIJ faces resistance from the FLRA and DOJ, they “would be aligning [themselves] with the previous administration.”
