J. Scott Applewhite/AP Photo
Rep. Tom McClintock (R-CA), left, confers with House Judiciary Committee Chairman Jim Jordan (R-OH), during an oversight hearing on the Justice Department on Sept. 20, 2023.
On Monday, House Judiciary Committee chair Jim Jordan (R-OH) and immigration subcommittee chair Tom McClintock (R-CA) sent a letter to the director of the Executive Office for Immigration Review (EOIR), a division of the Justice Department. The letter requested information about a gag order placed on “certain immigration judges,” preventing them from speaking to the press or Congress.
The gag order had been reported in the Associated Press, and Jordan and McClintock used it as a cudgel to bash the Biden administration’s immigration policies. “It is particularly striking that the Biden administration seeks to stifle the free speech of immigration judges at a time when Congress, and this Committee in particular, is conducting robust oversight of the border crisis and how the nation’s immigration courts are being used to carry out President Biden’s open-border policies,” the two wrote.
But Jordan and McClintock made no reference to what specific judges were being targeted by this gag order. In fact, it was only two, both of them leaders of the National Association of Immigration Judges (NAIJ), a union that was decertified by a Trump administration ruling in 2020.
The Prospect obtained a copy of the gag order, an email sent by chief immigration judge Sheila McNulty on February 15. McNulty’s message was only delivered to Judges Mimi Tsankov and Samuel Cole, president and executive vice-president of the NAIJ. Immigration judges are not independent members of the judiciary, but employees of the Justice Department.
The email specifically took issue with the two judges’ roles in the union. “I understand you are of the impression that your positions in the group known as the National Association of Immigration Judges (NAIJ) permit you to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews) without supervisory approval,” McNulty wrote. “The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present.” In other words, because of the union decertification—which the Justice Department claims to not support—immigration judges could no longer speak freely; McNulty said they would have to obtain prior approval first.
The Prospect attempted to contact Judge Tsankov to ask about the gag order. In a voice message, Judge Tsankov replied, “I really do appreciate your reaching out and I wish I could assist you. However, on February 15, 2024, in my capacity as president of the National Association of Immigration Judges, I received an email from the chief immigration judge ordering that NAIJ leadership cease speaking to the media, Congress and members of the legal community… Due to that order, which is still in effect at this time, I’ll need to decline this request.”
It is jarring to see the Justice Department silencing union leadership, particularly in the context of President Biden’s consistent self-identification as the most pro-union president in American history. But Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), of which the NAIJ is a union local, said that neither Biden nor anyone in the White House knew about the gag order when he brought it to their attention.
“There’s a firewall between the White House and DOJ,” Biggs said in an interview. “We talked to the White House about it, they were surprised by it. We don’t even think the upper levels of the DOJ knew about it. This came from overzealous people at the Executive Office of Immigration Review… It’s an embarrassment for the President.”
THE SAGA OF THE NAIJ DATES BACK to the last administration. The union, which represents more than 500 immigration judges, was an outspoken critic of Trump-era policies, which denied immigrants the ability to stay in the U.S. at much higher rates than past presidents. They balked at the Trump-mandated heavy workload, requiring each judge to work through 700 cases a year to get a positive performance review.
As a result, Trump’s Justice Department petitioned to decertify the union. The Federal Labor Relations Authority (FLRA), an independent agency that is essentially the National Labor Relations Board for federal employees, approved the petition, in a highly unusual maneuver undertaken the day before the 2020 presidential election and despite the FLRA’s own chief counsel recommending denial. The decertification was based on a controversial claim that immigration judges are managers ineligible for unionization.
This is what’s ironic about Jim Jordan’s claims about the Biden administration muzzling dissent. The union decertification was carried out by Jordan’s favored choice for president, and at the time it was seen as a retaliatory effort to silence immigration judges.
The Prospect first wrote about this dispute in March 2021. The Biden Justice Department has since agreed to recognize the union and withdraw the Trump-era decertification petition. But that didn’t end the legal fight, as EOIR said it was bound by the FLRA’s decertification ruling.
The gag order is of questionable legality. Federal employees have the right to provide information to Congress without prior approval under an anti-gag law.
In April 2022, the FLRA, which still had a Trump-appointed majority, dismissed NAIJ’s appeal. When the board flipped to a Biden-appointed majority the next month, the NAIJ filed a petition for union recognition, basically starting all over again, while it challenged the FLRA’s prior ruling in federal court. The D.C. Circuit Court of Appeals ruled last August that the NAIJ filed the lawsuit before the FLRA dealt with the new petition. No further action has been taken.
While it awaited resolution, NAIJ leadership has done what it always has done, appearing before Congress, speaking at professional conferences, and making comments to the media, in their independent capacity as union leaders. One congressional event appears to have triggered the gag order: an October 2023 Senate Judiciary subcommittee hearing on the immigration court backlog, which at the time was at 2.6 million cases. (It’s now over three million.)
Judge Tsankov testified at the hearing as the head of the NAIJ. She talked about immigration judges having few resources and support staff, and a lack of independence under the Justice Department’s purview. “The only real solution is to create an independent Article I immigration court,” Judge Tsankov said, criticizing the “pendulum swings” from one presidency to the next and the “heavy political scrutiny” on their activities. And she noted that several independent studies have been critical of EOIR management and bureaucracy.
These were familiar complaints for the NAIJ, which has long spoken out about a lack of resources and the structural constraints on independence, as the AFL-CIO pointed out in a statement after the hearing. In other words, these were worker complaints about the conditions of work.
But it seems to have been the last straw. EOIR put the gag order on Tsankov and her fellow union official a few months later. As a result, Tsankov had to cancel speaking engagements with the American Bar Association, the National Press Club, and ironically, a conference at Columbia University about First Amendment issues.
WITHIN A HALF-HOUR OF RECEIVING THE GAG ORDER, Tsankov contacted Biggs, the head of her union. “This union has been around since 1971, they’ve never had a gag order on them,” Biggs said. “It’s an insult to them as workers… If the immigration judges, the frontline judges who know more about what’s going on in these courts than anybody, if they can’t speak, who are the press and Congress supposed to go to?”
The gag order is of questionable legality. Federal employees have the right to provide information to Congress without prior approval under an anti-gag law, and disclosure of that fact is supposed to be part of any communications. In addition, appropriations laws allow Congress to withhold the salary of any federal employee who prevents other employees from communicating with Congress.
As McNulty said in the gag order email, the only reason that EOIR was able to impose this was because of the union decertification. According to Biggs, after a series of phone calls and one meeting between EOIR and the affected judges, McNulty said the agency would think over the union’s concerns and get back to them. So far, it hasn’t. EOIR did not respond to a request for comment from the Prospect.
The AFL-CIO has called the decertification of the NAIJ “a direct attack not only on federal employees’ bargaining rights, but also on the independence of the immigration court.” The gag order, the IFPTE says, extends that attack.
Biggs said he supported the House Judiciary Committee investigation, despite its lean toward attacking the Biden administration. Sen. Charles Grassley (R-IA) has also written to EOIR to condemn the gag order, calling it “absolutely unacceptable.”
Surprisingly, no Democrats on the committee have said anything about it. The Prospect contacted Reps. Jerrold Nadler (D-NY), ranking member of the Judiciary Committee; Pramila Jayapal (D-WA), ranking member of the immigration subcommittee; and Lou Correa (D-CA), a subcommittee member. None of them responded.
UPDATE: Rep. Jayapal has given a statement to the Prospect: “The actions by EOIR are concerning. The National Association of Immigration Judges has been an integral voice of immigration judges for decades. Their leadership has been key to Congressional oversight of the immigration courts, including testifying before the Immigration Subcommittee the previous two Congresses at the invitation of the Democratic majority. I hope that DOJ clarifies this directive promptly.”
The White House, which Biggs said was concerned and was “taking a look” at the matter, also declined to respond.
“She’s the president of this local,” Biggs said, referring to Tsankov. “Even if you don’t want to call them a union, they are one. She is the elected president representing our nation’s immigration judges. And she can’t go and speak at a conference without approval of EOIR? It’s outrageous.”
After press time, EOIR spokesperson Kathryn Mattingly submitted this statement: “EOIR leadership works to ensure that all EOIR personnel are aware of and abide by statutes, regulations, and Department policies and procedures applicable to all EOIR personnel, regardless of their position or affiliations with external entities. This includes our existing policy on speaking engagements, which encourages EOIR personnel to participate in speaking engagements, and helps ensure that information provided to the public about EOIR’s policies and operations is accurate. This policy does not restrict the rights of individuals to make protected disclosures, including by whistleblowers, to Congress or anyone else.”
