Ashley Tabaddor, a federal immigration judge in Los Angeles who serves as the president of the National Association of Immigration Judges, speaks at the National Press Club in 2018.

Ashley Tabaddor, a federal immigration judge in Los Angeles who serves as the president of the National Association of Immigration Judges, speaks at the National Press Club in 2018. Susan Walsh/AP file photo

Immigration Judges Union Survives, For Now

Federal Labor Relations Authority regional director rejects arguments by the Justice Department that immigration judges are managers and therefore their union should be decertified.

A Federal Labor Relations Authority regional director last week reaffirmed that federal immigration judges are not management officials and therefore can unionize, rejecting an effort by the Justice Department to decertify the National Association of Immigration Judges.

Last year, the Justice Department announced that it would seek to bust the vocal immigration judges union, arguing that circumstances had changed since the FLRA last reviewed—and upheld—the judges’ eligibility to bargain collectively in 2000. At a hearing in January, attorneys for the department argued that although immigration judges’ duties remain entirely nonsupervisory in nature, changes to how the Board of Immigration Appeals may review the judges’ decisions elevate their work to influencing agency policy, making them management and thus ineligible to unionize.

Last week, FLRA D.C. Regional Director Jessica Bartlett rejected those arguments, as well as a theory that the Lucia v. Securities and Exchange Commission Supreme Court decision had a bearing on immigration judges’ collective bargaining status. The Lucia decision held that some administrative law judges are inferior officers under the Constitution and require presidential appointments rather than competitive hiring. 

A key argument made by Justice Department officials was that judges in the Executive Office of Immigration Review now receive more deference to their factual findings than when the FLRA last reviewed whether they are managers in 2000. But Bartlett said the change in deference is not enough to justify decertifying the union.

“The deference granted to [immigration judges'] factual findings [does] not turn judges into management officials,” she wrote. “The facts exist, are presented to the judges in the form of evidence, and can later be superseded by new or previously unknown evidence, or can be subject to re-examination by order of the [Bureau of Immigration Appeals] . . . Even in the unusual circumstances where the facts may influence a future decision, they remain subject to review, and as such, the added deference now granted to the [immigration judges'] finding of facts does not create a scenario where the [judges] are creating or influencing agency policy.”

The focal point of who is and is not eligible to bargain collectively at the Executive Office of Immigration Review is whether the employee shapes policy or merely implements it.

“The [Bureau of Immigration Appeals] has a right to overturn its prior precedent and to make new precedent,” Bartlett wrote. “The [immigration judges] may not overturn [bureau] precedent or create their own precedent. That unchanged difference is the key difference that supported the [FLRA] finding the [Bureau of Immigration Appeals] members are management officials while the [immigration judges] are not. That difference has not changed since the 2000 authority decision, and that difference supports the continued upholding of the conclusion that [immigration judges] do not make policy, but instead, only assist in the implementation of agency policy.”

Bartlett also rejected the Justice Department’s “novel” theory that Lucia v. SEC applies to immigration judges.

Lucia addressed administrative law judges at the Securities and Exchange Commission, not Department of Justice immigration judges, who are appointed under different statutory schemes, and are subject to differing levels of performance review, supervision and termination," the decision stated. "No precedent was presented to support the conclusion that Lucia was intended to or does apply to [immigration judges] . . . Indeed, Lucia is totally silent on the issue, and thus, fails to stand for the proposition for which the agency asserts it.”

The Justice Department has 60 days to request that the full FLRA board review this decision. But at least for now, officials at the National Association of Immigration Judges said they are “pleased” with the decision.

“With the public facing a health crisis and desperate for courtroom safety, the Department of Justice and [Executive Office of Immigration Review] have focused limited resources on litigating a matter already decided two decades ago,” said union president Ashley Tabaddor. “It’s time to drop this decertification action and other efforts to silence judges and instead to focus on the important work of our courts."

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.