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Durbin, Padilla urge Garland to protect immigration judges’ union

Without union, immigration judges will be less independent, more susceptible to political pressure, they say

Sen. Richard Durbin, D-Ill., chair of the Senate Judiciary Committee, at an April 20 hearing.
Sen. Richard Durbin, D-Ill., chair of the Senate Judiciary Committee, at an April 20 hearing. (Bill Clark/CQ Roll Call file photo)

Senate Judiciary Committee leaders on Monday called on Attorney General Merrick Garland to recognize the immigration judges’ union and reverse the Trump administration’s efforts to dismantle it.

In a letter first obtained by CQ Roll Call, Chairman Richard J. Durbin, D-Ill., and immigration subcommittee Chairman Alex Padilla, D-Calif., led an effort asking Garland to restore independence for immigration judges, who fall under Justice Department jurisdiction.

The senators also asked Garland to provide details about his stance on the judges’ union by June 14.

In November, following a request by the Trump administration, a labor board overturned long-standing precedent and ruled to decertify the union. Formally known as the National Association of Immigration Judges, it has acted as a bargaining representative for immigration judges for more than four decades.

“The NAIJ – the immigration judges’ longstanding union – must be allowed to retain its full authority as the judges’ recognized representative for collective bargaining purposes,” wrote Durbin and Padilla, who hold top spots on the Senate committee overseeing immigration legislation.

Without union protection, immigration judges “will be less independent and more susceptible to political pressure,” they added.

The senators also asked Garland how his department plans to revise its policy on free speech rights of immigration judges. The union sued the Justice Department in federal court last year over a policy barring immigration judges from discussing immigration law in their personal capacities, including during interviews with journalists and at academic conferences.

[Despite Biden’s union support, immigration judges left waiting]

Taken together, the Trump administration’s request to decertify the union and restrict the ability of judges to speak publicly “appear to have been part of a deliberate attempt to muzzle immigration judges and stifle opposition to the Administration’s anti-immigrant agenda,” the senators wrote.

The letter was also signed by Sens. Patrick J. Leahy, D-Vt., Dianne Feinstein, D-Calif., Sheldon Whitehouse, D-R.I., Amy Klobuchar, D-Minn., Richard Blumenthal, D-Conn., Mazie K. Hirono, D-Hawaii and Cory Booker, D-N.J.

A spokesperson for EOIR declined to comment Monday when asked about the department’s position on the immigration judges’ union.

The support of the senators, including Durbin, who also serves as the Senate majority whip, ramps up pressure on the Biden administration to undo myriad policies implemented under his predecessor that curbed the independence of immigration judges.

Under the Trump administration, the Justice Department and its Executive Office for Immigration Review, the agency that oversees the U.S. immigration court system, imposed strict case quotas on judges and limited their ability to temporarily pause lower priority deportation cases — policies the immigration judges’ union opposed.

DOJ officials also revised hiring procedures to more easily promote immigration judges with high asylum denial rates.

[DOJ changed hiring to promote restrictive immigration judges]

Garland, a former federal appeals court judge, has yet to intervene. The lack of action has frustrated current and former immigration judges alike who hoped to see more concrete efforts from the Biden administration, which has been vocal in its support for labor unions.

Last year, Whitehouse led a letter signed by eight other senators raising concerns the DOJ had staffed the immigration courts with partisan judges “to increase political influence over individual immigration cases.”

Shortly after President Joe Biden took office, House Oversight and Reform Chairwoman Carolyn B. Maloney, D-N.Y., and Rep. Gerald E. Connolly, D-Va., who chairs the committee’s government operations panel, pressed then-nominee Garland to “take all necessary actions” to protect the judges’ union. Calls have also ramped up more than two months after Garland was confirmed as attorney general.

Earlier this month, raising concerns of politicized hiring in the immigration courts under the last administration, dozens of human and civil rights organizations urged Garland in a letter to overhaul agency leadership and review recent hiring decisions.