June 7, 2021
The Honorable Merrick Garland Attorney General
U.S. Department of Justice Washington, DC 20500
RE: Department of Justice Should Support the National Association of Immigration Judges and Withdraw the Petition to Decertify its Union
Dear Attorney General Garland,
We, the undersigned unions, organizations, immigration law professors and scholars, and other immigration court stakeholders call your attention to the urgent need to preserve and protect the National Association of Immigration Judges (NAIJ) and support collective bargaining by Department of Justice (DOJ) career civil servants. We are heartened by President Biden’s announcements on January 22, 2021, that both overturned his predecessor’s policies limiting employee rights to collectively bargain and also implement a wide-ranging policy to protect, empower, and rebuild the career federal workforce. President Biden’s announcements specifically encourage union organizing and collective bargaining.1
After four relentless years of union-busting, decisive leadership is needed to refortify the federal workforce. NAIJ and its 500+ bargaining unit members—immigration judges who are DOJ attorney employees—are in need of protection right now! NAIJ has been the collective bargaining representative for immigration judges since 1979. Yet, in 2019, the Trump administration filed a petition to strip immigration judges of their statutory right to be represented by a union and decertify NAIJ.
The Trump administration targeted NAIJ in retaliation for NAIJ’s criticism of both the unreasonable working conditions that DOJ managers imposed on its members and the sweeping curtailment of due process rights in immigration court.
While the decertification attempt was initially and thoroughly rejected in a decision by a career employee of the Federal Labor Relations Authority (FLRA), the decision was abruptly reversed
1 Executive Order 14003, on Protecting the Federal Workforce. 1
in a politically-motivated decision by the FLRA. That FLRA decision ignored the detailed fact-finding of the career employee and reversed long-standing FLRA precedent that 20 years earlier had found that immigration judges were not in a position to influence agency policy.
The FLRA decision is devoid of any reasoned analysis and creates an extremely dangerous precedent for professional workers throughout the federal government. Future administrations could wield this decision like a sword to preclude other professional employees such as physicians, scientists, engineers, and others from unionizing. Indeed, this ill-conceived anti-union precedent could have devastating repercussions for decades to come.
At this moment, a motion to reconsider is currently pending at the FLRA, and we call on the DOJ to withdraw its opposition to that motion, withdraw its decertification petition, and take all steps to restore collective bargaining rights for NAIJ members. President Biden has committed to restoring labor unions and fair working conditions for federal employees. We ask the DOJ to do its part in supporting that objective by taking all necessary actions to ensure that the NAIJ remains a union so that it can continue to represent its members in support of fair working conditions. Doing so will be a service to Immigration Court stakeholders and the public at large.
We seek your immediate review and leadership in this matter. Sincerely,
Amiena Khan
Amiena Khan, President
National Association of Immigration Judges
Unions: AFL-CIO
American Federation of Government Employees (AFGE), AFL-CIO American Federation of Government Employees (AFGE), Local 511
American Federation of Government Employees (AFGE), Local 3525
American Federation of State, County & Municipal Employees American Federation of Teachers
Asian Pacific American Labor Alliance, AFL-CIO
Association of Flight Attendants-CWA
2
Communications Workers of America (CWA)
Department for Professional Employees, AFL-CIO
Federal Education Association
International Federation of Professional and Technical Engineers (IFPTE) International Union of Painters and Allied Trades
Labor Council for Latin American Advancement National Association of Government Employees National Education Association
National Federation of Federal Employees National Nurses United
National Treasury Employees Union
National Weather Service Employees Organization Patent Office Professional Association
Service Employees International Union (SEIU) The International Brotherhood of Teamsters UNITE HERE
United Mine Workers of America
United Power Trades Organization
Organizations:
African Services Committee
Alliance for Justice
American Immigration Lawyers Association AsylumWorks
3
Bellevue Program for Survivors of Torture Brooklyn Law School Safe Harbor Project Catholic Labor Network
Catholic Legal Services, Archdiocese of Miami Catholic Legal Immigration Network, Inc. Center for Gender & Refugee Studies
Columbia Law School Immigrants’ Rights Clinic Disciples Immigration Legal Counsel
Florence Immigrant & Refugee Rights Project Immigrant Defenders Law Group
The Legal Aid Society
Migrant Center for Human Rights
Minnesota Interfaith Coalition on Immigration Mississippi Center for Justice
National Immigration Law Center
National Network for Immigrant & Refugee Rights The Right to Immigration Institute
Round Table of Former Immigration Judges
Law Professors and Scholars with Institutional Affiliation for Identification Purposes only:
Sabi Ardalan
Clinical Professor of Law
Harvard Immigration and Refugee Clinical Program Harvard Law School*
Roxana C. Bacon
4
Adjunct Professor of Law Arizona State University* University of Arizona* University of Miami*
David Baluarte
Associate Clinical Professor of Law Washington & Lee University School of Law*
Jon Bauer
Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law*
Lenni B. Benson
Distinguished Chair of Immigration and Human Rights Law New York Law School*
Matthew Boaz
Professor
Washington & Lee School of Law*
Stacy Caplow
Associate Dean of Experiential Education & Professor of Law Brooklyn Law School*
Rose Cuison-Villazor
Vice Dean and Professor of Law Rutgers Law School*
Ingrid Eagly
Professor of Law
University of California Los Angeles School of Law*
Lauren Gilbert
Professor
St. Thomas University College of Law*
Lindsay M. Harris
Associate Professor & Director, Immigration & Human Rights Clinic University of the District of Columbia, David A. Clarke School of Law*
Katie Herbert Meyer
Associate Professor of Practice and Director of the Immigration Law Clinic Washington University*
Geoffrey Hoffman
Clinical Professor and Immigration Clinic Director
5
University of Houston Law Center*
Alan Hyde
Distinguished Professor of Law and Sidney Reitman Scholar Rutgers Law School*
Erin Jacobsen
Professor and Director at Vermont Law School’s South Royalton Legal Clinic Vermont Immigrant Assistance
Vermont Law School*
Hiroko Kusuda
Clinic Professor and Director of Immigration Law Section
Loyola University New Orleans College of Law*
Stuart H. Smith Law Clinic and Center for Center for Social Justice
Vanessa Merton
Professor of Law
Immigration Justice Clinic Elizabeth Haub School of Law*
Karen Musalo
Professor and Founding Director, Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic
U.C. Hastings College of the Law*
Lori A. Nessel
Professor
Seton Hall University School of Law*
Michael A. Olivas
Wm B. Bates Distinguished Chair (Emeritus) University of Law Center*
Maria Mercedes Pabon Professor of Law
Loyola University New Orleans*
Carrie Rosenbaum
Lecturer in Legal Studies University of California, Berkeley*
Faiza Sayed
Visiting Professor of Clinical Law and Co-Director Safe Harbor Clinic
6
Brooklyn Law School*
Gemma Solimene
Clinical Associate Professor of Law Fordham University School of Law*
Elissa Steglich
Clinical Professor and Co-director Immigration Clinic University of Texas School of Law*
Mark E. Steiner
Professor of Law
South Texas College of Law Houston*
Enid Trucios-Haynes Brandeis School of Law University of Louisville*
Irene Scharf
Professor
Immigration Law Clinic University of Massachusetts*
Doug Smith
Lecturer in Legal Studies Brandeis University*
Paul Wickham Schmidt Immigrationcourtside.com
Erica B. Schommer
Clinical Professor of Law
St. Mary’s University School of Law*
Michael J. Wishnie
William O. Douglas Clinical Professor of Law Yale Law School*
*Institutional affiliation for identification purposes only
7
*****************************
FULL DISCLOSURE: I am a retired member of the NAIJ.
Thanks to my friend Judge Amiena Khan and the rest of her leadership group at the NAIJ for all they do to fight for due process for individuals in Immigration Court!
To date, Garland and his team have been busy defending Billy Barr’s and Trump’s corruption from legal accountability, appointing Barr’s hand-picked “judges” to their overtly non-progressive judiciary, attempting to intimidate the press (until the White House finally had to intervene), and carrying out pre-existing Stephen Miller inspired precedents and policies. Oh yeah, and engaging in their own mindless unilateral round of “Aimless Docket Reshuffling” (a/k/a yet another designed to fail “Dedicated Docket”) in Immigration Court while continuing to build on the pre-existing 1.3 million case backlog. They have also been occupied with ignoring every progressive and expert suggestion and NOT appointing progressives to leadership and judicial positions. Wow! That’s a very full plate (of unappetizing food)!
So, I’m not holding my breath for a favorable response to the latest request for the injection of some legality, common sense, and decency into EOIR. Nor am I expecting Biden and Harris to honor their commitment to Federal Employee Unions, after watching their performance to date on immigration and human rights. Additionally, given the continuing abysmal performance of EOIR and its ongoing waste and incompetence, I doubt whether they want any “internal critics” speaking truth to power.
So far, Garland is on course to be “Billy Barr, Jr.” While that might help Barr to avoid legal accountability for his corrupt administration of justice @ Justice, it’s not so good for progressives who would like to see (and once believed they would see) some “justice from Justice” particularly for racial minorities, women, children, asylum seekers, and other migrants.
They also would like to see at least minimally professional and respectful treatment of those appearing and representing individuals in Immigration Court. While Garland, Monaco, Gupta, and Clarke are all being paid comfortable “top of the line” USG salaries for ignoring long-overdue progressive reforms @ EOIR, many attorneys representing individuals in their “Star Chambers” are operating pro bono or low bono in their attempts to keep Garland’s failing and flailing system afloat.
Just more reasons why we need an independent Article I Immigration Court to deliver due process, racial, and gender justice to individuals, regardless of status.
Republished By License. Guess Garland forgot to flush!
🇺🇸Due Process Forever!
PWS
06-08-21