Every New Yorker with a car knows about the Parking Violations Bureau, which is where one goes to get convicted (which is only slightly hyperbolic). The problem is that the judges are employees of the City and, while putatively there to fairly adjudicate parking tickets, the PVB has never been known for its fairness or concern for parkers. They’re not judges.
Neither are immigration judges, despite what anybody wants to believe.
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.
They certainly have “enormous consequences” for a very discrete group of people, but that doesn’t make them judges “in the truest sense of the term,” whatever that means. On the other hand, immigration judges do a remarkably better job of trying to be fair than PVB judges, who would hang a New Yorker for parking in a loading zone if they could.
That IJs are executive rather than judicial branch employees is an important distinction, and a reminder about other administrative quasi-judges who make decisions about people’s lives while getting a paycheck from one side of their courtroom. While IJs weren’t always liked and appreciated back when they were hacking away at the population of folks whose presence in the US wasn’t entirely appreciated, they’ve become more appreciated since the American left took an overnight interest in non-citizens.
Now they want to hear what IJs have to say about it, but there’s a policy in place that IJs need permission before speaking about immigration out of school. And it’s recently been expanded.
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.
That IJs are subject to constraints is, in itself, no biggie. Real judges are too, as well they should be, and they serve a different master. The question isn’t whether an employer has a right to control its employees’ speech on the subject of its employees’ work. The question is how far that authority extends.
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.
That there is a recent extreme interest in what Immigration Judges have to say is understandable. After all, Trump, even if nobody gave a damn when Obama was the deporter in chief. And that IJs have been overly muzzled by this administration can’t be seriously disputed.
The effect of the restrictions on speaking engagements has been profound, according to representatives for the National Association of Immigration Judges and organizations that in years past have hosted these judges. Before the 2017 policy went into effect, immigration judges routinely spoke at national conferences, law schools, and educational seminars about the intricacies of immigration law and how specific policies played out in their courtrooms. Now organizations such as the Federal Bar Association, the American Immigration Lawyers Association, the Practising Law Institute, and Human Rights First can no longer count on the expertise of immigration judges at their events or trainings.
There should be nothing controversial about IJs giving training or educational seminars. Or, for that matter, imploring newly naturalized citizens to exercise their rights.
Reflecting on the years he swore in new citizens, George Chew, a recently retired New York judge, shared with me the message he’d give new citizens: “I remember my standard speech was an exhortation for the new citizens to register to vote. I’d say, Your vote is equal to Donald Trump’s vote,” he told me in an email. As a result of the Justice Department’s policy, these new Americans are now being deprived of these civic reminders from people who have seen firsthand the legal hurdles immigrants face on the path to citizenship.
Has this policy, newly expanded and administered with an iron fist, trampled the First Amendment rights of Immigration Judges? But then, what to do about the IJ who stands behind the mic criticizing policy, telling tales of three-year-olds left to argue their cases pro se? Approval for speaking might be sought for a benign purpose, but end up elsewhere, even if only in response to loaded questions.
As Tabaddor, the president of the union, told me recently, the policy was “designed to intimidate and to muzzle anyone that would speak publicly.” That runs counter to America’s commitment to freedom of speech. Immigration judges, more than anyone else in America’s bloated immigration bureaucracy, should be able to speak about how immigration law and policy are shaping the adjudication of cases that come before them.
Odd how free speech, as a principle, gets pulled out when it’s useful. Then again, if the IJs wanted to speak to how “illegal aliens” are destroying this country, would that same argument be raised? Yet, the interest in immigration isn’t the controlling factor here, any more than the point that nobody knows better about immigration law than the judges who enforce it.
Our Immigration Judges serve the Executive branch of government; they’re as much judges as the cop who pulls his gun and decides whether to impose the death penalty. They knew when they applied for the job they would have to serve somebody, and the complaint that the new boss is tough is a reminder that they were never really judges at all.