Despite the claim that this was merely a reissuing, the policy did change: It now covers more types of speech. In a footnote, the government says that “speaking engagements” should also be understood to mean “written pieces intended for publication in any print or online media.” In other words, through its pre-approval process, the Justice Department wants to police, and possibly suppress, even more expression by immigration judges.
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Under the new guidance, the Executive Office for Immigration Review (EOIR) remains the sole arbiter for what counts as official- or personal-capacity speech, with near-total discretion to deny speaking requests through a laborious process that includes layers of review by a judge’s supervisor and three separate offices within the agency. “This process,” the new memo states, “ensures compliance with both the law and agency policy and consistency in EOIR’s communications.” Elsewhere, the policy notes that the red tape for personal speaking engagements is necessary “to determine whether they involve genuinely personal capacity events, whether there are any ethics concerns with the engagement, and whether the engagement will disrupt EOIR operations by requiring the employee to miss work.”
The effect of the restrictions on speaking engagements has been profound, according to representatives for the National Association of Immigration Judges and organizations that in years past have hosted these judges. Before the 2017 policy went into effect, immigration judges routinely spoke at national conferences, law schools, and educational seminars about the intricacies of immigration law and how specific policies played out in their courtrooms. Now organizations such as the Federal Bar Association, the American Immigration Lawyers Association, the Practising Law Institute, and Human Rights First can no longer count on the expertise of immigration judges at their events or trainings. Some of these organizations have turned to relying instead on retired immigration judges, according to Laura Lynch, a senior policy counsel with the American Immigration Lawyers Association. “We have been lucky that retired IJs have been willing to participate,” she told me in an email. Mark Shmueli, an immigration attorney who has organized many immigration conferences, said in an interview that he no longer bothers reaching out to active immigration judges. “We don’t even try any more,” he said. In a later email, he added: “Judges are definitely muzzled.” For their part, a number of law professors from different parts of the country raised alarms in a Slate article about how judges have had to turn down invitations to speak to their students.
Some judges, an NAIJ representative told me, don’t want to go through the trouble of seeking permission from their superiors at the Justice Department—and thus miss out on speaking opportunities altogether. And many of those who do seek permission are denied it, according to records maintained by the union. One judge, for example, was not allowed to speak about the legal standards for asylum at a conference; another wasn’t allowed to speak about the basics of immigration law at an educational conference. Others were denied approval to speak about the duties of judges and the mission of the immigration-court system, and to present at a county-bar meeting about best practices for bringing asylum claims. Pro bono trainings, which aim to teach lawyers how to provide free services to clients who couldn’t otherwise afford an attorney, are also off the table.