Writer in Residence
Knight First Amendment Institute
Cristian Farias reports in The Atlantic:
For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.
Since September 2017, immigration judges and all other employees at the Justice Department’s Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not. I learned of the policy through a Freedom of Information Act request my colleagues made to the department, as part of an investigation I’ve been conducting on the intersection of free speech and U.S. border enforcement.
Read: The thousands of children who go to immigration court alone
It is not uncommon for government agencies to set rules on employee conduct and outside activities. But the perspective of immigration judges is particularly valuable to the public, especially one grappling with complicated questions about America’s immigration laws. In his 2019 year-end report on the federal judiciary, Chief Justice John Roberts commended American judges who, “without fanfare or acclaim,” take time to reach out to their communities in all sorts of public-education initiatives. As Ashley Tabaddor, the president of the National Association of Immigration Judges, told Congress in 2018, immigration judges “help the community better understand our immigration courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public.”
Although immigration judges are employees of the executive branch, they’re judges in the truest sense of the term, presiding over cases that have enormous consequences for asylum seekers or people facing removal from the U.S. The Trump administration appears determined to remove from the public’s view the very people the chief justice and Tabaddor believe play an essential role in promoting public confidence in the administration of justice. The Justice Department should heed their call—rescind its misguided policy and let judges speak.
In the 2017 memo, the official overseeing the work of immigration judges, James McHenry III, did acknowledge that “the public has become increasingly interested in hearing about, and understanding, what the agency does and specifically how Immigration Courts operate.” But the policy went on to severely restrict judges’ freedom to speak even in a personal capacity about these matters, requiring them to seek permission through the chain of command. “Supervisors will determine the capacity in which an employee is speaking,” McHenry’s memo stated, thus effectively eliminating a judge’s discretion to speak about immigration in public settings, even with a disclaimer that he or she was doing so in a personal capacity. Supervising judges and other senior employees have it even worse—they are simply forbidden from speaking at public events in a personal capacity at all.
Lawyers at the Knight First Amendment Institute at Columbia University, where I’ve been conducting my investigation, believe that the policy violates the First Amendment, and in early January issued a letter asking the Justice Department to suspend it. Their reasoning was grounded in well-settled Supreme Court precedent. In the 1968 case Pickering v. Board of Education, the Supreme Court recognized that public employees’ “right to speak on issues of public importance” doesn’t vanish the moment they take a government job. For the government to restrain public employees’ ability to speak, the Supreme Court has said, the Constitution requires officials to show that their interest in restraining speech outweighs employees’ interest in speaking and the public’s interest in hearing what they have to say. “The Government must show,” Justice John Paul Stevens explained in a 1995 case, “that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” That’s a heavy lift.
The Justice Department hasn’t officially responded to the lawyers’ letter. But in mid-January, McHenry’s office did reply in a way: It purported to reissue the 2017 memorandum, calling it “established policy,” and unveiled an online portal through which immigration judges may submit their speaking-engagement requests for approval. According to the department, the new portal was necessary “to provide for more certainty and clarity” for judges, an implicit acknowledgment that the earlier guidance was causing confusion among immigration judges. (The reissued policy hasn’t been made public, but a person familiar with it showed it to me.)
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Read Cristian’s complete article at the above link.
”The truth will set you free.” But, at EOIR, the truth will get you fired!
Given the due process and management disasters going on at EOIR, it’s not surprising that they want to silence the witnesses. What is surprising is that they have been getting away with it so far.
NOTE: Even prior to becoming the home of EOIR Headquarters, Bailey’s Crossroads had long reputation of being associated with the circus. However, more recent scholarship has cast doubt on those claims. According to this Washington Post article, Bailey’s Crossroads’ claimed association with the Ringling Bro’s Barnum & Bailey Circus might be as attenuated as EOIR’s claimed association with due process and fundamental fairness! https://www.washingtonpost.com/archive/local/2002/05/19/history-at-the-crossroads/5da541c9-5aa4-49cc-83f9-7ecb49a1b12b/
However, what the article does correctly point out, and EOIR under the influence of the White Nationalist regime appears to have forgotten, is that Bailey’s Crossroads has a long history of being a vibrant community of industrious immigrants who made Northern Virginia into what it is today!
Due Process Forever; Clown Courts Never!
PWS
03-03-20