Lawmakers ask why the Biden administration won't let immigration judges talk to the media

WASHINGTON — President Joe Biden’s Justice Department has ordered leaders of the immigration judges union to seek supervisor permission before speaking, which some lawmakers and union leaders see as a move to silence critics of border policy despite Biden saying he is the "most pro-union president" ever.

Lawmakers on both sides of the aisle — from GOP firebrand Rep. Jim Jordan of Ohio., to Progressive Caucus Chair Rep. Pramila Jayapal, D-Wash. — are hounding the administration about its decision, with the issue of immigration and the crisis at the southern border front and center in the months leading up to a critical presidential election. The nation’s 700-plus immigration judges are the people who decide whether migrants seeking asylum in the United States can remain in the country legally, and they currently face a record backlog of more than 3 million cases.

“No one knows better what’s going on in the immigration courts than the judges themselves,” said Matt Biggs, president of the International Federation of Professional and Technical Engineers, an organization affiliated with the judges union, the National Association of Immigration Judges. “There is so much misinformation on immigration, and this group is the only honest broker.”

In an email sent last month and obtained by NBC News, Sheila McNulty, chief judge of the Executive Office for Immigration Review (EOIR), the DOJ division that oversees the immigration courts, informed the top two NAIJ officials that, effective immediately, they “are subject to the same policies as every EOIR employee” and would no longer be allowed to speak freely with the press or before Congress, which had been the norm for more than 50 years.

This week, when NBC News contacted Judge Samuel Cole, a Chicago-based immigration judge and executive vice president of NIAJ, he said, “I’m not allowed to give you any comments at all. I’m sorry, I have to get pre-approved for anything I would say,” and then hung up the phone.

The DOJ, which hires immigration judges and runs immigration courts, has historically forbidden the judges from talking — with the exception of leadership for the immigration judges union. In the past, union leaders have been able to testify before Congress and be quoted in the media on issues, such as case backlogs, criteria for asylum and efforts to prioritize certain cases, such as families or detained migrants, in their courtrooms.

The union was effectively dissolved by the Trump administration in 2019, a move that the NAIJ president at the time labeled as “nothing more than a desperate attempt by the DOJ to evade transparency and accountability.”

Biden’s DOJ shifted away from his predecessor’s efforts, but the decision to recertify the union largely rests with the Federal Labor Relations Authority, which is deadlocked in a 1-1 split until the Democratic-controlled Senate confirms Biden’s nominee for the board.

Until that happens, the DOJ could choose not to recognize the union and therefore prohibit its members from speaking unconditionally.

But advocates say that if the White House wanted to, it could voluntarily certify the union. Union representatives believe that there was a decision to muzzle its members after heavy condemnation of the DOJ’s handling of the immigration issue.

“NAIJ frequently testifies before Congress, they speak to the press, they speak to reporters, and we can only speculate that the chief judge over there or others around her didn’t like what" NAIJ President Judge Mimi Tsankov had to say, Biggs said in a phone call Wednesday.

A spokeswoman for the EOIR said in a statement that the division’s policy on judges’ speech does not restrict them from speaking engagements and making “protected disclosures” to Congress, but did not say why judges were not allowed to testify before Congress or speak to the press.

“EOIR leadership works to ensure that all EOIR personnel are aware of and abide by statutes, regulations, and Department policies and procedures applicable to all EOIR personnel, regardless of their position or affiliations with external entities,” EOIR spokeswoman Kathryn Mattingly said. “This includes our existing policy on speaking engagements, which encourages EOIR personnel to participate in speaking engagements, and helps ensure that information provided to the public about EOIR’s policies and operations is accurate. This policy does not restrict the rights of individuals to make protected disclosures, including by whistleblowers, to Congress or anyone else.”

David Neal, the head of EOIR, told staff and Congress on Friday that he is leaving the office for health reasons.

Tsankov has criticized the historic backlog of immigration court cases and in October testified before a Senate committee that some of the blame lies with the DOJ’s “inability to effectively lead” on the matter. She was featured regularly in the press and on panels, including in February mere days before the “gag” order went into effect, when she spoke out about the challenges in U.S. immigration courts.

One union representative speaking on the condition of anonymity said the organization’s judges “have always been outspoken in supporting due process. And we are not afraid to point out the failures of the immigration court system, the EOIR, and the Department of Justice.”

With the order in place, the official said, Congress would have a limited window into the realities of the immigration system and would not be able to effectively craft policy to address DOJ shortcomings. “When the union is not able to call attention to the serious flaws in the system and the mismanagement of the immigration courts, it’s really disheartening. And takes away an important voice for judges to express their concerns,” the person said.

Under the Trump administration, for example, immigration judges were able to speak about his decision to send them to the border to expedite cases and conduct remote hearings for children.

In a letter addressed to Attorney General Merrick Garland earlier this month, Sen. Chuck Grassley, R-Iowa, a persistent voice for whistleblowers, suggested that the move was intended to thwart criticism of the administration’s actions on immigration. He said, “It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border.” Grassley has not yet heard back, according to his office.

If the judges were to ignore the EOIR’s new directive and speak to the public without explicit permission, they could face consequences including termination, a source familiar with the process said.

“The actions by EOIR are concerning,” said Jayapal, who is the ranking member of the House Judiciary Committee's immigration subcommittee. “The National Association of Immigration Judges has been an integral voice of immigration judges for decades. Their leadership has been key to Congressional oversight of the immigration courts, including testifying before the Immigration Subcommittee the previous two Congresses at the invitation of the Democratic majority. I hope that DOJ clarifies this directive promptly.”

Union representatives met with White House officials from the Domestic Policy and National Economic councils this week who said they were not informed of the EOIR’s plans and maintained that the agency acted unilaterally. Sources said that they expect the EOIR will reverse course on the issue after pressure from immigration advocates and Congress, but that the White House rarely gets involved in DOJ orders.

“There is a disconnect in some of these government agencies between Biden’s pro-union posture and what actually happens and occurs in these agencies in practice,” Biggs said.

The White House maintains that any policy regarding immigration judges is set by the DOJ and that White House officials do not want to interfere.

To prevent this from happening in the future, the union has backed legislation that would create an independent immigration judiciary that is separate from the DOJ. The Real Courts, Rule of Law Act introduced by Rep. Zoe Lofgren, D-Calif., in 2022 would transition the immigration court system into an independent judiciary. She reintroduced the bill Tuesday but it does not have any Republican co-sponsors.

Keeping immigration courts within the DOJ “leads to case delays and NIAJ calls that out in every chance they get,” a union official said. “It’s not good for due process or the American public or people who appear before our court.”

This article was originally published on NBCNews.com