DOJ silences immigration judges with 'draconian' gag order amid migrant crisis, growing case backlog

The Department of Justice issued a gag order on February 15 that requires immigration judges to seek department approval before speaking publicly, the Associated Press reported.

The National Association of Immigration Judges has previously been outspoken regarding the nation's growing backlog of immigration cases. There is currently a backlog of approximately 3 million cases. According to the Transactional Records Access Clearing House at Syracuse University, each immigration judge has been assigned 4,500 cases each as of December. Judges can typically complete approximately 750 cases per year, the New York Post reported.

Chief Immigration Judge Sheila McNulty's February order requires the DOJ's approval for the union's members "to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews)." McNulty cited the Federal Labor Relations Authority's November 2020 decision to strip the union of its collective bargaining power. The decision decertified the NAIJ's union status, thereby removing its protections.

"The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present," McNulty wrote in an email last month to NAIJ leadership, the Government Executive reported. "Please consider this email formal notice that you are subject to the same policies as every [Executive Office of Immigration Review] employee."

Matt Biggs, president of the International Federation of Professional and Technical Engineers, the parent union of the NAIJ, stated that the gag order is "unprecedented."

"It's a pretty draconian directive," he added.

Biggs told the Post that the union's members have "never been muzzled before."

"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," he continued. "Now, all of a sudden, out of the blue, their management at the Executive Office of Immigration Review put a muzzle on them."

Biggs called the order "outrageous" and "un-American," the AP reported.

"Why are they trying to silence these judges?" he questioned.

Biggs speculated that the recent gag order may be in response to Judge Mimi Tsankov's testimony before the Senate committee in October, during which she blamed the growing immigration case backlog on the DOJ's "inability to effectively lead."

Matt O'Brien, a former immigration judge who now works as the director of investigations at the Immigration Reform Law Institute, told the Post, "[T]his 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."

Tsankov declined the Post's request for comment, stating, "Following the receipt of an email [from] 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 of Immigration Review did not respond to requests for comment from the Post, the Government Executive, or the AP.

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