Immigration judges ‘muzzled’ from speaking publicly by DOJ

Immigration judges have been put under a a gag order by the Department of Justice (DOJ), stopping them from talking publicly amid an unprecedented three million cases waiting to be heard in courts.

The National Association of Immigration Judges (NAIJ) said its members now need to get prior approval from the DOJ to speak, per orders from the department’s manager, Sheila McNulty.

The union had previously been outspoken amid record numbers of migrants arrving at the border and filing claims in immigration courts, overwhelming the already strained system.

Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), an umbrella organization supporting the NAIJ, told the Post the order is unprecedented.

“They’ve never been muzzled before,” Biggs said.

“They speak on behalf of the nation’s immigration judges, and they have a very, very critical and important perspective to share with the public with the press and with the Congress.

“Now, all of a sudden, out of the blue, their management at the Executive Office of Immigration Review, put a muzzle on them,” Biggs said.

As of December there were 682 federal immigration judges, each with a caseload of around 4,500 each, according to the Transactional Records Access Clearinghouse at Syracuse university.

Judges are typically able to complete around 750 cases a year. The backlog of cases has increased from just over 500,000 in September 2016 to reach over 3 million in November 2023, according to TRAC.

Former immigration judge Matt O’Brien, who now serves as the director of investigations at the Immigration Reform Law Institute, told the Post: “The NAIJ has long advocated judicial independence for the immigration bench.

“However, this administration wants a compliant immigration judge workforce that will find a reason to approve any cases assigned to it. As a result, the Department of Justice has a vested interest in prohibiting the NAIJ from drawing public attention to flaws in that approach.”

In October, New York-based Judge Mimi Tsankov, who serves as NAIJ’s president, testified to a Senate committee that some of the blame for the growing immigration court case backlog lies on the DOJ for its “inability to effectively lead.”

Tsankov pointed to DOJ lacking “the institutional expertise to manage an independent court,” adding that it “routinely interjected into the adjudicatory functions of the immigration court system itself.”

Tsankov and NAIJ’s executive vice president Samuel Cole, an immigration judge in Chicago, were also able to speak publicly about “the pressures of the migrant crisis on the federal immigration court system” at the National Press Club in October last year.

Tsankov declined to comment when reached by the Post, saying: “Following the receipt of an email chief immigration judge Sheila McNulty on February 15, I’m not permitted to participate in writing or speaking engagements, including interviews, in my capacity as President of the National Association of immigration judges, without supervisory approval.”

The Executive Office for Immigration Review (EOIR) didn’t immediately respond to the Post’s request for comment.

The Trump administration took away the collective bargaining rights of the NAIJ, which was founded in 1971 as an association. In 1979, the NAIJ received its union status.