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Immigration Judges Sue Trump Administration for Stifling Free Speech

— July 3, 2020

The lawsuit claims that the Trump administration is trying to make it appear as if immigration judges are wholly supportive of the government’s immigration policies.

A coalition of immigration judges have filed a lawsuit against the Trump administration, alleging that the Department of Justice is stifling their First Amendment right to free speech.

The Texas Tribune reports that the lawsuit takes aim at a recently implemented rule.

Passed by the Justice Department’s Executive office of Immigration Review in early 2020, the rule forbids judges from speaking about immigration law or policy, even in a personal capacity. It also requires judges to receive department approval before offering an opinion on any other government policies.

“It requires several layers of approval in order to speak in a public way on pretty much anything,” said Chicago-based immigration judge Samuel Cole, a member of the National Association of Immigration Judges (NAIJ).

“That’s why I’m allowed to speak with you in my capacity as a union official but not in my capacity as an immigration judge,” Cole told KGUN9, explaining how the Trump administration began restricting judges’ First Amendment not long into the president’s term. “Starting in 2017, there was a new process that was put in place that really sharply limited immigration judges in how they could speak.”

The suit, notes the Tribune, was filed by the Knight First Amendment Institute at Columbia University on behalf of the NAIJ. The NAIJ, a professional organization and union, represents about 460 judges across the United States.

The Knight First Amendment Institute alleges that the Justice Department’s policy is unconstitutional. They also claim that prior Supreme Court precedent definitively shows that “people do not surrender their free-speech rights when they accept government employment.”

Gavel resting on open book; image by verkeorg, via Flickr, CC BY-SA 2.0, no changes.
Gavel resting on open book; image by verkeorg, via Flickr, CC BY-SA 2.0, no changes.

The only time the government can censor their own employees’ speech, says the Institute, is when such censorship outweighs both individual and public interest.

“The government cannot satisfy this test here,” the lawsuit says.

Judge A. Ashley Tabbador, president of the NAIJ, said that judges are obliged, by nature of their profession, to explain their decisions in ways which naturally clash with the Justice Department’s prohibitive directive.

“Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society,” Tabbador said in a statement. “This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process.”

The lawsuit is keen to observe that the Justice Department implemented the policy at a time when immigration continues to be a contentious political issue. Even amidst the coronavirus pandemic, the Trump administration has taken numerous steps to curtail both legal and illegal immigration, including the immediate deportation of undocumented immigrants without the chance to plead for asylum and the curtailment of the H-1B skilled labor program.

Judge Cole said it is apparent that the Trump administration does not want immigration courts to offer opinions on its more contentious reforms.

“There was just a regulation published within the past couple of weeks, a proposed regulation that really places some very strict limits on asylum,” Cole said, telling KGUN9 that neither he nor his colleagues are even allowed to offer their own views on it.

“These are all attempts to keep us quiet,” he said. “To keep our perspective out of the public dialogue—and it’s really important right now, given everything that’s going on in immigration, that people hear what we have to say about this.”

The Trump administration has also restructured immigration courts in drastic ways, giving judges case quotas and make it substantially more difficult for them to close cases.

“There is significant public interest in these changes and in their effects on the independence of immigration judges and the process afforded migrants who appear before them,” the lawsuit states. “Immigration judges are uniquely positioned to inform the public on these issues.”

The complaint also alleged that the Trump administration’s policy was designed with at least one intention in mind: to create the appearance that immigration judges unilaterally support its policies.

“The effect is to deny the public access to insights about how recent changes to immigration law and policy are working in practice,” the lawsuit says, “and to create the perception that EOIR employees uniformly support the administration’s policies.”


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