Biden Administration Recognizes Immigration Judge Union, Reversing Trump Decision

The Biden administration on Tuesday reversed a Trump-era decision to strip immigration judges of their collective bargaining rights, opting to once again recognize the employees’ union. 

While President Biden has repeatedly vowed to empower federal employee unions and his Justice Department has taken some steps to support the judges, it had until Tuesday continued to argue the union was defunct. The Trump administration first moved to decertify the union, which had been outspoken in its opposition of several of the president’s policies, in 2018. 

“Finally, this unjust and cynical attempt to silence immigration judges has ended,” said Mimi Tsankov, president of the National Association of Immigration Judges, which represents more than 500 judges in Justice’s Executive Office of Immigration Review. “NAIJ has represented immigration judges for 42 years and with this settlement we can continue to negotiate collective bargaining agreements for and to be a voice for those who adjudicate immigration decisions now and into the future.”

The Trump administration had argued that immigration judges, while not supervisors, directly influenced agency policy through their decisions and therefore were not eligible to collectively bargain. The case went to the central board of the Federal Labor Relations Authority, which in November 2020 overruled a regional director in upholding the decertification. NAIJ quickly filed a motion for FLRA to reconsider and in June, Biden’s Justice Department withdrew its opposition to it. Still, as the union separately fought against the practical fallout of its decertification, the Biden administration argued to the FLRA that the union was no longer recognized. 

“As a result of the authority’s November 2020 ruling, there are no longer any employees in the bargaining unit,” Justice argued in court just a few months ago. “As there are no employees in the bargaining unit, in essence, NAIJ is defunct.”

The settlement follows an announcement in October that EOIR would no longer enforce a quota system the Trump administration implemented in 2018, forcing judges to complete at least 700 cases and reach other benchmarks. The judges frequently and passionately criticized the system, saying their performance evaluations should not be tied to quickly churning out verdicts in their courtrooms. Biden also named Ashley Tabaddor, a former immigration judge and NAIJ president, as chief counsel at U.S. Citizenship and Immigration Services. 

As part of the settlement, NAIJ has withdrawn its unfair labor practices complaints against Justice and FLRA has withdrawn its findings against the department. The union said it hopes to have a more productive relationship with EOIR going forward. 

“Having a union helps judges maintain their decisional independence, protects them from political pressures, and provides a mechanism to remedy injustices,” Tsankov said. “We can now get back on track and focus our attention on supporting immigration judges and the serious work of advancing the EOIR mission.”

Justice similarly expressed optimism for a stronger working relationship in the future.  

“EOIR is pleased the parties could come to a common understanding of the issues, which enabled the agency to reach an agreement with the NAIJ,” said Kathryn Mattingly, an EOIR spokeswoman, “and EOIR looks forward to working together to maintain a fair and efficient immigration court process governed by the rule of law.”

FLRA’s decision to decertify had broken down along partisan lines, with the board's two Republicans voting in favor and the lone Democrat calling his colleagues’ argument “the antithesis of reasoned decision making.” That panelist, Ernest DuBester, now serves as the board’s chairman after Biden tapped him for the slot. 

This story has been updated with comment from the Justice Department.