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Immigration Judges Stripped Of Bargaining Rights As Battle With Trump Administration Continues

Published: Thursday, November 12, 2020 - 1:19pm
Updated: Thursday, November 12, 2020 - 2:15pm
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LAUREN GILGER: Immigration judges continue their ongoing battle with the Trump administration today. The day before the election last week, the Federal Labor Relations Authority labeled immigration judges as managers, taking away their access to collective bargaining and delivering what some are calling an all-out assault on their rights to organize. The move comes after years of conflict between immigration judges in the country and the Trump administration. And here to tell us more about all of it is KJZZ's Matthew Casey with our Fronteras Desk. Good morning, Matt.

MATTHEW CASEY: Good morning, Lauren.

GILGER: So let's start with a little background here. Immigration judges are not like most judges in the country, right? They are employees, actually, of the Justice Department.

CASEY: That's correct. There are about 500 immigration judges across the country. Their union has been around for decades. And these judges work for an arm of the Justice Department called the Executive Office for Immigration Review. Now, that same agency also runs the immigration courts. And this has made judicial independence a major issue, especially when you're talking about things like asylum cases, which can be life and death. Having a union has been a way for the judges to vocalize their concerns about possible encroachments on their independence. Losing it, they tell me feels — or means losing a key tool for public transparency.

GILGER: So put this latest move into context for us then, Matt. Is this coming from the Trump administration?

CASEY: Well, the president picked both of the authorities' members who reversed the original call made in July by one of the agency's own regional directors, right? A third member of this leadership group who was first appointed by Obama, kept on by Trump, objected to the reversal. The authority's general counsel job, the person that gives them legal advice, is vacant, is vacant. So the judges union has long called for immigration courts to be made independent like tax or bankruptcy courts. An early 1980s commission reportedly recommended exactly that to the president and Congress. One could say that creating the Executive Office for Immigration Review in '83 was really a step toward independence because it made immigration courts separate from the [Immigration and Naturalization Service] (INS). But three major immigration bills have become law in the decade since INS was swallowed whole by — well, not whole, but swallowed by the Homeland Security Department. And the immigration court system is still under DOJ.

GILGER: So [National Association of Immigration Judges] (NAIJ) President Ashley Tabaddor, who we've heard from on The Show before, said about this, that, quote, "This is just the latest example of attempts to interfere with the independent decision-making authority of federal immigration judges." What did she mean by this?

CASEY: Well, it goes back to the judges' bosses being the exact same people who run the courts, which are backlogged, secretive, and still largely on a paper system. This whole thing, this whole enchilada, so to speak, answers to the executive branch. The president can bend the system to their will by doing things like having the attorney general refer a case to themself and redefine who qualifies for asylum. There's also the blocking of judges from closing cases administratively, annual case quotas, et cetera. The union has been very vocal going back to when Jeff Sessions was attorney general about their independence concerns under Trump.

GILGER: So the NAIJ says it's pursuing legal and other options to challenge this. But at the same time, we have elected a new president in this country, Joe Biden. Could a new administration coming in kind of change all of this at all?

CASEY: Well, it's unclear right now. The union tells me that they're submitting a request this week for the Federal Labor Relations Authority to reconsider its reversal of the regional director. Depending on how that goes, they may seek help in federal court, in federal court, which, of course, means litigation. But the union also tells me that the Justice Department considers the decision to be effective immediately. I asked DOJ if that were true, and they gave me a statement that in part says they're happy the decision recognizes judges as both independent decision makers and sculptors of immigration policy. Influencing policy is the standard for a federal worker to be considered manager, like you mentioned at the beginning.

GILGER: All right. That is KJZZ's Matthew Casey joining us this morning on that. Matthew, thank you so much.

CASEY: Thank you, Lauren.

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