Biden administrator won’t oppose offer to revive Immigration Judges’ Union

Signage is visible at the headquarters of the US Department of Justice (DOJ) in Washington, DC, United States, on May 10, 2021. REUTERS / Andrew Kelly – RC24DN9WINRX

  • Immigration judges are management workers who cannot unionize, labor committee said
  • AG Merrick Garland has been pressured by unions and Democrats to recognize the union

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(Reuters) – The US Department of Justice has dropped its opposition to a proposal by a union of immigration judges to overturn a decision by a Trump-era labor panel that revoked the accreditation of the union.

The Justice Department’s Executive Office for Immigration Review (EOIR) on Friday withdrew its opposition to the National Association of Immigration Judges’ motion for reconsideration of the November ruling, according to which judges were executive employees who cannot unionize under federal law.

The move came as the Department of Justice and Attorney General Merrick Garland came under pressure from Congressional Democrats and other unions to withdraw their opposition to the pending reconsideration motion and voluntarily recognize the NAIJ and restore its ability to bargain collectively on behalf of its members.

San Francisco-based immigration judge Dana Marks, president emeritus of the NAIJ, said on Monday that the DOJ’s withdrawal from its opposition could pressure the FLRA to reverse its decision, as it means that no party does not support the position of authority.

Marks, who said she was speaking in her capacity as an NAIJ officer and not as a judge, said the FLRA decision was deeply flawed and should be overturned.

“I would fail a freshman law student who doesn’t realize we’re a trial court. We don’t set a precedent and we don’t influence policy,” she said.

Immigration judges, who are employees of EOIR, preside over cases concerning the rights of immigrants to enter or remain in the United States. About 470 judges are members of the NAIJ, which is represented in the case by Latham & Watkins.

In a 2000 case, the FLRA rejected the claim that all immigration judges are management employees under the Federal Service Industrial Relations Act because they are shaping new policy by issuing rulings. .

The then agency said judges were simply applying the law and their decisions were subject to review by the Immigration Appeals Board.

In a 2019 petition, the Justice Department said that since then the number of cases heard by judges has skyrocketed. As a result, many more of their decisions are never reviewed by the BIA and may set a precedent for future cases, the ministry argued.

The petition came amid vocal opposition from the NAIJ to various Trump-era policies, including rules limiting the discretion of immigration judges and requiring them to seek permission before speaking in public or publishing. writings on their work.

The FLRA’s regional director in Washington DC disagreed with the DOJ last July and denied his request.

But the FLRA in a 2-1 decision in November overturned the union’s accreditation, saying immigration judges influence Department of Justice policy through the decisions they make in individual cases.

FLRA member Ernest DuBester, the only Democrat on the panel, in a long dissent, accused his colleagues of acting hastily and inexplicably parting with a long-standing precedent.

Biden in January appointed DuBester as FLRA chairman and formally appointed him for the job last week.

The case is the United States Department of Justice’s Executive Office for Immigration Review and the National Association of Immigration Judges, Federal Labor Relations Authority, No. WA-RP-19 -0067.

For EOIR: Charles Barksdale of the Executive Office for Immigration Review

For the NAIJ: Margaret Tough of Latham & Watkins, Richard Bialczak

Daniel Wiessner

Dan Wiessner (@danwiessner) reports on labor, employment and immigration law, including litigation and policy development. He can be reached at [email protected]

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