FLRA Blocks Immigration Judges' Union Organizing Amid Calls for an Independent System
The Federal Labor Relations Authority (FLRA) found for a second time that the National Association of Immigration Judges (NAIJ) may not organize as they are comparable to managers, rejecting the collective bargaining powers of nearly 600 judges.
In the 2-1 decision, the FLRA rejected requests by the NAIJ and the Justice Department’s Executive Office of Immigration Review (EOIR) to overturn its initial decertification decision in November 2020. The Justice Department withdrew its complaint against the union last month–recognizing the nearly 50-year-old labor organization–and the EOIR has resumed meetings with union representatives about issues of concern to judges.
Both parties have the option of continuing their relationship and effectively ignoring the decision, but any future or present manager could cite the decision and refuse to acknowledge the union as the exclusive representative of immigration judges.
“This is a poorly reasoned decision and overrules the will of the parties. It is rooted in the majority FLRA board members’ anti-union bent and reflects a deep desire to silence immigration judges,” NAIJ President Mimi Tsankov observed.
According to Matt Biggs, National President of the International Federation of Professional and Technical Engineers—a federation including the NAIJ—stated some blame rests with Senate Majority Leader Chuck Schumer for failing to schedule nomination hearings for new members of the FLRA
"Make no mistake about it, this draconian and ideologically fueled action taken by the FLRA would have been avoided if the Senate had moved President Biden’s FLRA nominees last year. Our members are paying a terrible price, and the Senate must immediately prioritize this when it returns from recess," stated Biggs.
Two of the three members of the authority wrote the decision, with Chairs Colleen Duffy Kiko and James Abbott criticizing the union's attempts to relitigate the original decision.
“Instead of implementing the original decision, the regional office took specific actions that not only stymied implementation but also appeared to penalize the Agency for its attempt to comply,” wrote the majority opinion, “Unfortunately, the troubling series of events has allowed the union to continue to act as an exclusive representative for more than a year in contravention of the statute—all while ironically assisted by the statute’s machinery for ensuring compliance with the law.”
Chairman Ernest DuBester, the lone dissenter, argued that responding to a withdrawal petition did not make any sense.
"Although the Agency initially filed the underlying petition and opposed the Union’s motion for reconsideration of that decision, it has since changed its position – withdrawing its opposition to this motion for reconsideration and seeking to withdraw the very petition that provided the vehicle for the majority to issue its underlying decision," noted Chairman DuBester.
As a Justice Department component, EOIR is not an Article III court, but a court within the executive branch in accordance with Article II of the Constitution. This structure makes the system susceptible to administration priorities, as immigration judges report to the attorney general—who determines their policies and guidelines—rather than the impartial structure the judges of Article III are bound by.
“The timing of this month’s decision, coming only hours after a Congressional committee hearing on the need for an independent Article I immigration court, further highlights the stakes for fairness and the rule of law,” Tsankov concluded.
Last week, Tsankov was among witnesses testifying before the House Subcommittee on Immigration and Citizenship regarding a potential independent immigration court. Witnesses argued political pressures exacerbate internal issues while judges face constraints with an overwhelming caseload, in addition to insufficient funding.
While the Trump Administration implemented measures aimed at increasing efficiency in the immigration courts, their docket significantly ballooned with nearly 1.6 million cases pending—more than double the number reported five years earlier, according to the Transactional Records Access Clearinghouse. Since each judge has an average workload of more than 2,700 cases, people who immigrate to the U.S. can wait years to get a court hearing, much less a decision.
Tsankov noted that in a period where the Department of Homeland Security (DHS) saw a 300 percent budget increase, the immigration courts received a budget increase of 70 percent—to address related issues.
“To fix the backlog and other problems, Congress should remove the immigration courts from the DOJ and create an independent, Article I immigration court," Judge Tsankov stated, "The problems compromising the integrity and proper administration of the immigration court underscores the need to remove it from the political sphere of a law enforcement agency and assure its judicial independence."
Karen Grisez, former chair of the American Bar Association (ABA) Commission on Immigration, advocated for an independent immigration court system as the current system lacks basic procedural safeguards that are essential to impartial adjudications. Therefore, Grisez states that an Article I court is the best option to advance the rule of law in immigration adjudication by promoting independence and due process.
“Although the immigration courts provide some of the elements of due process under the current system, they fall short of providing full and fair hearings in too many cases. Many of the shortcomings of the current system do not stem primarily from existing rules and written procedures,” Grisez reported, “But in the way those are interpreted and applied by representatives of EOIR. And further, the location of EOIR within DOJ, under absolute control of the Attorney General, is at the root of that problem.”
The ABA has advocated for an independent immigration court since 2010, publishing a study on the state of the immigration court system that it reaffirmed in a supplementary report in 2019.
Andrew Arthur, a former immigration judge and Resident Fellow in Law and Policy for the Center for Immigration Studies, contends, however, that separating the immigration courts from the Justice Department would not protect them from political influence. Rather, he suggests an immigration circuit court would achieve guarantee uniformity and have the capacity to address the backlog of cases.
“Any proposal to restructure the immigration courts that would slow down the hiring of IJs by making the hiring of those judges’ dependent on any external party would do a disservice to the alien respondents, the government, and justice itself,” stated Arthur, “The creation of a new circuit court, solely dedicated to immigration, though would provide the benefits suggested by CRS, and would expedite appeals because each of the judges on that court would be a subject-matter expert in immigration.”
Update:
On January 28, 2022, the U.S. Court of Appeals for the District of Columbia Circuit overturned the FLRA’s decision, determining the authority “failed to offer a reasoned explanation for its decision that the statute does not require midterm bargaining.”