Despite Biden’s union support, immigration judges left waiting

Under Trump, a labor board ruled to decertify the judges' union. Will the Biden administration move to restore it?

The National Association of Immigration Judges hopes the Biden administration will reverse a Trump-era decision to decertify the group. (CQ Roll Call file photo)
The National Association of Immigration Judges hopes the Biden administration will reverse a Trump-era decision to decertify the group. (CQ Roll Call file photo)
Posted April 22, 2021 at 6:00am

President Joe Biden has emerged as a strong pro-labor voice, tapping a former union official as Labor secretary and issuing an explicit pro-union statement amid Amazon workers’ unionization bid. 

Still, the president has yet to offer support to one federal employees’ union that took a particular beating under the Trump administration — the immigration judges’ union. The Biden administration remains mum even as migration policies and asylum have emerged as hot-button issues of the president’s first 100 days in office. 

The National Association of Immigration Judges, which has represented the interests of immigration judges for more than four decades, has been fighting for its life since the Trump administration successfully petitioned a federal labor agency to decertify it. 

In a split ruling in November, the Federal Labor Relations Authority overturned long-standing precedent and held that immigration judges are management officials, and thus ineligible to be represented by a union. The union contested the ruling, and the case is still pending. 

Now, more than a month after former D.C. Circuit judge Merrick B. Garland was confirmed as attorney general, the Justice Department — which houses the U.S. immigration court system — has not intervened. 

Amiena Khan, president of the judges’ union, said in an interview that the Biden administration has not reached out about the issue. 

“We recognize the challenges that the current administration has before it, and we understand that the work that the administration is doing to address issues on the national scale, beyond immigration,” Khan said. “However, that being said, we are hopeful that there will be action sooner rather than later.”

Garland has yet to indicate whether he will rescind several decisions penned by attorneys general under the previous administration. In the last four years, Trump officials limited asylum eligibility for those fleeing violence by private actors, like gang members and domestic partners, and immigration judges’ ability to maintain their own dockets. 

“There’s no reason that Attorney General Garland hasn't done a thorough review of the attorney general certifications from the last administration,” said Susan Roy, a former immigration judge. “He should rescind any of them which he can. He has the authority to do that.”

'Night and day'

The Trump administration’s initial move to dismantle the immigration judges’ union was one of several taken to undermine federal employees’ labor protections, including an executive order to reclassify certain employees to make it easier for them to be fired. 

It was also one of several actions aimed at undermining immigration judges’ discretion, including by imposing case quotas and limiting judges’ abilities to manage their own caseloads. 

It’s historically rare for a union to be decertified by decree of the FLRA, said Joseph A. McCartin, a labor historian and professor at Georgetown University. He noted that the agency’s ruling had overturned years of precedent, which he said “did not seem merited.”

The Biden administration’s approach to labor, however, “is night and day compared to the Trump administration’s,” McCartin said. 

In the midst of the contentious union drive with Amazon, Biden offered an explicit statement in support of unions. He also warned employers against using coercion or threats to bust a union, without naming the e-commerce giant. 

“Unions put power in the hands of workers. They level the playing field. They give you a stronger voice, for your health, your safety, higher wages, protections for racial discrimination and sexual harassment,” Biden said in a video uploaded on Feb. 28. “Unions lift up workers, both union and non-union, but especially Black and brown workers.”

Biden also indicated his strong support for labor when he nominated former Boston Mayor Marty Walsh, the first union member to be picked for the role in decades. 

[Walsh confirmed to lead the Labor Department]

McCartin said he couldn’t think of another U.S. president who has offered such explicit and public support for the labor movement — Franklin D. Roosevelt included.

“I don’t think in recent decades there’s been such an abrupt shift from one administration to another in terms of how it deals with the question of the labor movement and workers’ rights to be in unions,” McCartin added. 

Though the administration has yet to offer such support for the immigration judges’ union, he said he would be surprised if the Biden administration doesn’t back the organization soon. 

“If it got to the end of May without any action, I’d be surprised,” McCartin said. 

Khan also said Walsh’s appointment is “very encouraging” to the union, and that she remains “cautiously optimistic for a just resolution” in their case. But she also said the union is “perplexed by the lack of response or outreach” by DOJ on the decertification issue.

Spokespeople for the Justice Department didn’t return requests for comment. 

Eyeing independent courts

The Biden administration’s inaction on the immigration judges’ union fight comes as Biden faces a political fight of his own at the southern border, which has seen a rise in migrant minors arriving in the U.S. without their parents and drawn heated political rhetoric from Republicans. 

Nearly 19,000 unaccompanied minors crossed the border in March alone, straining the government’s shelter capacity. On April 19, more than 22,000 migrant children were in federal government custody, including nearly 2,500 in border facilities not designed for children.

Border agents encountered migrants more than 172,000 times in March as well, though most single adults and some families were quickly turned away, or “expelled,” under a Trump-era public health directive. 

The Biden administration has also inherited a lengthy immigration court backlog — containing roughly 1.3 million cases — that have kept immigrants facing deportation and asylum-seekers waiting years for decisions in their cases. 

The Biden administration has recognized that immigration judges may be key to processing these claims quickly and efficiently. In a preview of its budget request released earlier this month, the White House proposed increasing funding for the Justice Department’s immigration court agency from $734 million to $891 million to hire 100 new immigration judges.

Immigrant advocates and former judges say freeing the immigration court system from political influences is also critical to this effort.

“Without a union, there’s no way to protect judges against political ideologies of a given administration,” Roy said. 

While judicial independence has “always been a concern” with a court system housed within a federal agency, “rarely has that been as problematic as it was under the Trump administration,” she said. 

Congressional pressure

Democrats in Congress raised similar concerns about what they saw as politicization of the court system under the Trump administration. 

Last year, Sen. Sheldon Whitehouse, D-R.I., led a letter signed by eight other senators over concerns that the DOJ had staffed the immigration courts with partisan judges and taken actions to “erode the independence of immigration courts.”

In late January, shortly after 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, called on then-nominee Garland to “take all necessary actions" to protect the union.

Earlier this month, Whitehouse expressed confidence that the Biden administration is “taking this problem seriously” and said in a statement that he “look[s] forward to working with them to restore due process.”

A Democratic aide for the House Oversight and Reform Committee said panel leaders believe Garland understands that unions, including the immigration judges’ union, “promote efficiency and effectiveness and that collective bargaining serves the public interest.”

Some advocates also want to see immigration courts be removed entirely from the DOJ and made an independent court system. The issue is on the agenda for the American Immigration Lawyers Association’s virtual “day of action” on April 22.

Roy, the incoming chair of AILA’s New Jersey chapter, acknowledged that Garland faces a number of competing priorities outside of the immigration courts. But she urged the administration against letting the system fall to the wayside. 

“The immigration court is a subject that needs immediate attention,” she said. “Otherwise, it's going to collapse under its own weight.”