Dozens of Lawmakers to Ask DOJ to Reverse Course on Immigration Judge Union Decertification

Dozens of Democratic lawmakers plan to ask the Trump administration to reverse course on its effort to strip immigration judges of their collective bargaining rights, saying the move would undermine the judges’ independence and further a larger effort to “dismantle unions representing the federal workforce.” 

The letter to Attorney General William Barr, spearheaded by Rep. Linda Sanchez, D-Calif., and cosigned by more than 75 of her colleagues, will ask the Justice Department to rescind its petition to decertify the National Association of Immigration Judges. Justice filed the petition in August with the Federal Labor Relations Authority, arguing the judges perform the duties of managers and are therefore ineligible for unionization. 

The Democrats, who will formally send the letter on Wednesday, said the decertification would upend the “integrity of the judicial system” and was one of many efforts the administration was pursuing to hamstring federal employee unions. They suggested Barr and former Attorney General Jeff Sessions have overruled career judges in several instances as a means of rewriting immigration policy, a process the lawmakers said has brought “chaos, not order, to a court system that is in crisis and is struggling to manage a growing backlog of approximately 1 million cases.” The judges themselves have frequently bemoaned their status within the Justice Department, arguing they should instead serve in an independent court system. They have also said the backlog of cases has grown, in part, due to a quota system the Trump administration imposed to require judges to hear a certain number of cases each year. 

“NAIJ serves as a critical independent voice for immigration judges who otherwise face limited discretion and authority when deciding life-altering cases,” the lawmakers wrote in the letter. They added the decertification process itself highlighted the “structural flaw” of housing the immigration court system within Justice rather than as an independent entity within the judicial branch. 

In a statement, Sanchez expressed a sense of urgency in getting Justice to act. 

“DOJ's idea to strip immigration judges of their collective bargaining rights is yet another offensive example of the Trump administration’s anti-immigrant agenda,” Sanchez said. “A move like that would undermine the judges' independence and further a larger effort to dismantle unions representing the federal workforce."

Justice’s effort follows a similar, and unsuccessful, strategy pursued by the Clinton administration. FLRA rejected the Justice Department’s argument in 2000 that immigration judges make policy through the issuance of decisions, noting the judges do not set precedent and their rulings are often appealed and reviewed. FLRA also said the immigration court system was established specifically so judges do not maintain any management duties to enable them to focus on hearings.

In 2000, the regional director rejected Justice’s argument and the full board upheld that decision upon appeal. One of the authority members ruling in the union’s favor was Dale Cabaniss, currently serving as director of the Office of Personnel Management.

The lawmakers are rallying after the union submitted its own filing with FLRA, arguing Justice committed an unfair labor practice through its decertification efforts. The department’s failure to respond to NAIJ’s request for more information about the process amounted to “bad-faith bargaining and disparagement,” the union said in its complaint. It submitted a second filing related to an email with news links that was sent to the judges, which included a racist article from a white nationalist website that criticized the employees. 

The House has passed a spending bill for Justice that would block the department from enforcing quotas on immigration judges, though the lower chamber must still reconcile that bill with the Senate. Lawmakers said in their letter the judges should at least be able to advocate on their own behalves. 

“The people who appear before our nation’s immigration courts deserve a system that protects fairness, due process, and impartiality,” they wrote. “NAIJ is an important part of a fair system. Therefore, we urge you to rescind the petition to decertify the NAIJ.”

Ashley Tabaddor, a California-based judge and NAIJ president, expressed confidence that one way or another, her union would persist.

“NAIJ greatly appreciates the leadership of Congresswomen Sanchez in organizing this letter and her steadfast support of the immigration judges across the nation," Tabaddor said. "NAIJ remains confident the DOJ will not be able to decertify the NAIJ and stifle the call for judicial independence and fairness.”