For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.
Since September 2017, immigration judges and all other employees at the Justice Department’s Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not. I learned of the policy through a Freedom of Information Act request my colleagues made to the department, as part of an investigation I’ve been conducting on the intersection of free speech and U.S. border enforcement.
It is not uncommon for government agencies to set rules on employee conduct and outside activities. But the perspective of immigration judges is particularly valuable to the public, especially one grappling with complicated questions about America’s immigration laws. In his 2019 year-end report on the federal judiciary, Chief Justice John Roberts commended American judges who, “without fanfare or acclaim,” take time to reach out to their communities in all sorts of public-education initiatives. As Ashley Tabaddor, the president of the National Association of Immigration Judges, told Congress in 2018, immigration judges “help the community better understand our immigration courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public.”
Although immigration judges are employees of the executive branch, they’re judges in the truest sense of the term, presiding over cases that have enormous consequences for asylum seekers or people facing removal from the U.S. The Trump administration appears determined to remove from the public’s view the very people the chief justice and Tabaddor believe play an essential role in promoting public confidence in the administration of justice. The Justice Department should heed their call—rescind its misguided policy and let judges speak.
In the 2017 memo, the official overseeing the work of immigration judges, James McHenry III, did acknowledge that “the public has become increasingly interested in hearing about, and understanding, what the agency does and specifically how Immigration Courts operate.” But the policy went on to severely restrict judges’ freedom to speak even in a personal capacity about these matters, requiring them to seek permission through the chain of command. “Supervisors will determine the capacity in which an employee is speaking,” McHenry’s memo stated, thus effectively eliminating a judge’s discretion to speak about immigration in public settings, even with a disclaimer that he or she was doing so in a personal capacity. Supervising judges and other senior employees have it even worse—they are simply forbidden from speaking at public events in a personal capacity at all.
Lawyers at the Knight First Amendment Institute at Columbia University, where I’ve been conducting my investigation, believe that the policy violates the First Amendment, and in early January issued a letter asking the Justice Department to suspend it. Their reasoning was grounded in well-settled Supreme Court precedent. In the 1968 case Pickering v. Board of Education, the Supreme Court recognized that public employees’ “right to speak on issues of public importance” doesn’t vanish the moment they take a government job. For the government to restrain public employees’ ability to speak, the Supreme Court has said, the Constitution requires officials to show that their interest in restraining speech outweighs employees’ interest in speaking and the public’s interest in hearing what they have to say. “The Government must show,” Justice John Paul Stevens explained in a 1995 case, “that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” That’s a heavy lift.
The Justice Department hasn’t officially responded to the lawyers’ letter. But in mid-January, McHenry’s office did reply in a way: It purported to reissue the 2017 memorandum, calling it “established policy,” and unveiled an online portal through which immigration judges may submit their speaking-engagement requests for approval. According to the department, the new portal was necessary “to provide for more certainty and clarity” for judges, an implicit acknowledgment that the earlier guidance was causing confusion among immigration judges. (The reissued policy hasn’t been made public, but a person familiar with it showed it to me.)
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.
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.
Perhaps the most absurd manifestation of the directive is how it prevents immigration judges from officiating at naturalization ceremonies—the pinnacle of the immigration experience for many new Americans. Amiena Khan, the executive vice president of NAIJ and a Manhattan judge, told me that in New York City, immigration judges no longer offer welcoming remarks or administer the oath at these ceremonies. For many judges, she told me, the ceremonies were the highlight of their time on the bench. Reflecting on the years he swore in new citizens, George Chew, a recently retired New York judge, shared with me the message he’d give new citizens: “I remember my standard speech was an exhortation for the new citizens to register to vote. I’d say, Your vote is equal to Donald Trump’s vote,” he told me in an email. As a result of the Justice Department’s policy, these new Americans are now being deprived of these civic reminders from people who have seen firsthand the legal hurdles immigrants face on the path to citizenship.
U.S. Citizenship and Immigration Services, which conducts administrative swearings-in for new citizens, confirmed with me through a spokesperson that no immigration judges have participated in any such ceremonies “in recent months” in Manhattan, and referred further questions to the Justice Department. When I asked the department about judges’ exclusion from naturalization ceremonies, another spokesperson told me that it “considers requests to administer the oath of citizenship as immigration judges’ schedules permit.” She added that the agency’s “primary mission is to adjudicate immigration cases,” which I took to mean that civic engagement and public education in the immigration realm aren’t priorities.
In my conversations with the immigration judges’ union and the would-be listeners who are affected by this policy, I’ve discovered that just about everyone sees it as an attempt by the Trump administration to control the message—to manufacture the appearance of consensus about the fairness and efficiency of the government’s immigration agenda. But anyone who has closely followed how the Justice Department has tried to keep immigration judges in line knows that that appearance does not square with reality: The abridgment of judges’ right to speak publicly quashes dissent and prevents the public from knowing what is happening at the nation’s immigration courts.
Perhaps the Justice Department doesn’t want judges to talk about how case backlogs have ballooned since Trump took office, to more than 1 million in 2019. Or to be frank about how they are now subject to case-completion quotas that may jeopardize their jobs. Or to explain that the attorney general has the power to overrule immigration rulings that he doesn’t like; that now even a political appointee has the authority to interfere with the adjudication process; and that the government is trying to decertify the immigration judges’ union, which in January appeared before a labor board in Washington to fight for its future.
All of this, and then some, is already in the public record, and judges are uniquely positioned to tell others about it. As Tabaddor, the president of the union, told me recently, the policy was “designed to intimidate and to muzzle anyone that would speak publicly.” That runs counter to America’s commitment to freedom of speech. Immigration judges, more than anyone else in America’s bloated immigration bureaucracy, should be able to speak about how immigration law and policy are shaping the adjudication of cases that come before them.