J. Scott Applewhite/AP Photo
Former Attorney General Jeff Sessions greets new immigration judges, after outlining Trump administration policies, in Falls Church, Virginia, September 2018.
The Trump administration’s manipulation of the immigration system went deeper than aggressive border policies and cruel detention practices. It also relentlessly pushed to rig the immigration court system to carry out Trump’s priorities.
Immigration courts, housed in the Department of Justice, are uniquely vulnerable to political interference. President George W. Bush stacked the Board of Immigration Appeals with judges favorable to his policies, as did President Obama. Under Trump, new BIA judges had asylum denial rates of 90 percent or higher. Overall, the Trump administration’s immigration judges administered denials at rates 20 percent higher than previous administrations, largely because of a series of steps it took to interfere in judicial discretion, docket management, and immigration and asylum case law.
The National Association of Immigration Judges (NAIJ), a union that represents the nation’s 500 judges, outspokenly opposed the administration’s efforts at every turn. In 2019, the Trump administration moved to decertify the immigration judges’ union, a move seen by most as an overt attempt to muzzle dissent. Last fall, the Republican-majority Federal Labor Relations Authority (FLRA) agreed to decertify, overturning 20 years of precedent and a recommendation by its own chief counsel. The lone Democratic FLRA member, Ernest DuBester, dissented. He is now FLRA chair.
The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.
As the administration begins to process asylum seekers in the “Remain in Mexico” program and otherwise roll back Trump’s asylum blockades, the court system will need to run efficiently and fairly. As it is, the immigration court backlog—largely created by Trump policies—is at 1.3 million cases.
Trump’s decertification of NAIJ “was to retaliate against NAIJ for our strong voice and our strong call to demand transparency and accountability,” said Amiena Khan, NAIJ president. The union’s previous president, A. Ashley Tabaddor, is now chief counsel at U.S. Citizenship and Immigration Services. The union is hopeful that Biden will take action, though nothing has yet been forthcoming.
“We are very supportive of the current Biden administration and appreciate his strong support for unions and collective bargaining,” said Khan.
Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.
Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.
Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union.
The Executive Office for Immigration Review (EOIR) has refused to recognize the union since the FLRA decertification. EOIR declined to comment.
Khan says that having a union is imperative to securing judicial independence when making life-or-death decisions in immigration court, such as deciding if someone is eligible for asylum. Under Trump, she pointed to how easy it was for the administration to make the courts an arm of law enforcement. Trump’s attorneys general rewrote asylum law so that domestic and gang violence no longer qualified someone for protection. When COVID-19 hit immigration courts, there was so little transparency that judges often didn’t know when the court would be open. It eventually became evident that the administration was so invested in manipulating the courts that the White House was determining when courts were open.
Union officials also say that Biden’s support for the immigration judges’ union is key for other administrative judges and federal employees’ collective-bargaining rights. If the union is not recertified, Khan said it “will have a profound impact on unions throughout the federal government.”
It would become like legal ping-pong: Every time the administration changed, policies toward federal employee unions would change. It would also set a precedent for how the federal government might go after federal employee unions.
“It’s highly unusual for the federal government at any level to aggressively go in and try to decertify a union,” Shearon said. “The process this one took is even more egregious, overruling previous decisions by the former FLRA … just to implement this.”
Biden’s support for the immigration judges’ union is key for other administrative judges and federal employees’ collective-bargaining rights.
Members of Congress and other unions have pushed the Biden administration to voluntarily recognize the union again. In a January 25 letter, the AFL-CIO wrote to the administration: “The FLRA’s union-busting decision is the unmistakable culmination of the Trump administration’s orchestrated attacks against NAIJ and broader attacks against all administrative judges, federal employees’ collective bargaining rights, and labor unions.”
Rep. Carolyn Maloney (D-NY), chair of the House Committee on Oversight and Reform, and committee member Rep. Gerald Connolly (D-VA) wrote a January 22 letter to the attorney general–designate calling for immediate reinstatement of the judges’ union: “Decertification of the judges’ union is contrary to longstanding precedents and clear retaliation against immigration judges for their fair and impartial adjudications of the nation’s immigration laws.” Sen. Kirsten Gillibrand (D-NY) also wrote a letter in support of immediate action.
In a February 1 letter to the new administration requesting reforms to the immigration courts and immigration enforcement priorities, 165 immigration, civil rights, and human rights organizations sought Biden’s support for the creation of an independent immigration court—a major thrust of the union’s advocacy.
The union argues that they are not managers; they can’t even order a legal pad on their own. But collective bargaining enables them to push for more transparency, more translators, and greater discretion over their own dockets.
Part of the union’s work during the last administration was demanding accountability and transparency for the nation’s 67 courts and 500 judges, explained Khan. “Part of that was absolutely asking for decisional independence and the rights of our judges, to be able to effectuate due process, and permit fundamentally fair hearings,” she added. “That’s the oath we take when we’re sworn in and we uphold the laws of our nation. Due process is applicable to noncitizens, as well as citizens.”
