Federal Employees News Digest
Immigration judges union pushes back against administration effort to shut them down
- By Nathan Abse
- Sep 02, 2019
The Department of Justice has launched an effort to decertify the National Association of Immigration Judges, arguing that the group’s members should be considered managers with policy-setting capacity—and therefore should not be permitted to organize and collectively bargain under federal law. The NAIJ has been around for decades—and since 1979 has been designated as the “recognized representative for collective bargaining for all U.S. Immigration Judges,” as stated on the group’s website. The recent fracas has thrown NAIJ’s existence in danger, and the union is fighting back. It has published extensively, explaining its long legitimacy as a federal employee union and—most recently—issued an August press release asserting its legal grounds for opposing the most recent Trump administration efforts against its continuing role. This week, Nathan Abse interviews the president of the NAIJ, Ashley Tabaddor, who discusses what she and her union see as the continuing and unacceptable position of the nation’s immigration courts under the control of a law enforcement agency—as well as the unacceptably crushing workload suffered by immigration judges.
Q&A with Ashley Tabaddor
Has any previous administration pushed back this hard on immigration judges—I mean, attempted to decertify your union?
Tabaddor: First of all, I need to say again that I am talking to you in my capacity as the president of the National Association of Immigration Judges. This is important for me to say. This disclosure itself contains the most telling piece here—about the problems of our immigration courts and immigration judges system. We are judges—but we are kept under a part of a court system that is under a law enforcement agency. All of our problems start from the tug-of-war between the law enforcement arm here, that particular responsibility of the Attorney General, versus the Attorney’s General’s other responsibility here—delegated to that office by Congress—to adjudicate [immigration] cases in a fair manner. Everything—all of the problems—is borne out of this tug-of-war.
Why is this a problem—and how does it all relate to the current administration’s efforts to decertify your union and its representation of immigration judges?
Tabaddor: It’s a problem because in it, there’s a conflict between the law enforcement duty and the need to adjudicate fairly. The current effort at decertification is a direct reflection of the Attorney General and the Department of Justice not wanting to have the immigration judges resolve these issues—to bring transparency and accountability when the court—when instead it is being used as a law enforcement tool. What they are trying to do is to take away the labor law protections that are afforded to federal employees, including us. These protections are the only way we can talk, under these circumstances.
Why is that the only way you can speak out at all—using the labor protections, the union?
Tabaddor: It’s like this: If we were in a regular court, and we were regular judges, as judges we could make their own determinations about when to talk about things—and what to talk about—publicly. The state of the court, the issues of the court, those are things that a regular [American] court can normally talk publicly about. In contrast, the Department of Justice is a law enforcement agency, basically—and they can and are muzzling employees of the immigration courts [part of that agency] from talking publicly about what it is doing. The only way we can talk is because of the labor law protections that are afforded federal employees, and the labor law protections to discuss working conditions we work under. Frankly, without those protections, the [DOJ] can not only take away our voice—they can take away our rights more generally.
Can you give me an example of this?
Tabaddor: Last year, this administration issued three executive orders that were directly targeting federal government unions and all of our federal employee rights—our ability to have any claim to due process and a transparent system that protects us and our jobs. These were designed to destroy the unions, and designed to take away the rights of employees to have the ability to hold the employer accountable when the Department of Justice wants to fire someone, or discipline someone, or suspend someone. These are long-lived, traditional labor law protections we have in this country, that the administration has targeted.
Most of our readers are familiar with that situation, yes—but where does this hit you and your members?
Tabaddor: So, those are two guiding principles of this administration [i.e., the administration wants to take away rights and transparency from federal employees.] Between these two, they have targeted us. That’s presumably because we have been both vocal and effective, in highlighting the problematic ways the immigration courts have been viewed as an extension of law enforcement priorities—rather than as a neutral arbiter of the facts and the law, when it comes to each individual case.
Again, have previous administrations pushed this hard to weaken immigration judges and their independence—and, if so, can you outline it for our readers?
Tabaddor: Yes, this has happened before. In 1999, there was an effort to decertify—the agency sought to decertify us. It was right when the union was trying to get the department to engage in our very first collective bargaining agreement. That is, it happened the very first time we were standing up and demanding to be treated fairly and transparently, with respect to working conditions. For example, we were trying to hold the agency accountable with respect to what was called the alternate work schedule. The president at the time had recognized that alternate work schedules should be encouraged. But our managers didn’t want to do that. They were involved in a lot of favoritism, behind the scenes, toward some judges—with respect to transfers between courts and other matters—and there were other problems. We were pushing the Department of Justice to engage in a collective bargaining agreement. And clearly they did not want to. The department tried to stop our union’s outspoken nature in the situation, and our demands to be treated fairly in general.
That’s interesting—it was under an administration of a different party, too, back then—correct?
Tabaddor: That’s right. And we’ve said this from Day One: This is not a Republican or Democratic issue! This is not a partisan politics issue. This is an American, principles of democracy issue. That’s again because whoever is elected, whoever is in office, [under the current structure of our immigration courts] they will not be able to overcome this conflict of interest. Inevitably, they will use or try to use these courts as a tool of law enforcement. This kind of situation should never exist in a court of law—these are not problems any judge should have to be afraid of. Our immigration courts just shouldn’t be in this situation.
Can you explain in more detail the nature of the conflict—and why government needs to fix it?
Tabaddor: Yes. If the judges were truly independent—if the judges were not being used as an extension of law enforcement—then the DOJ would have to be more mindful. From our perspective, it is indefensible to use the court as an instrument—a shuffleboard. What ends up happening now is they will say, “Hey, we are going to put this group of people ahead of this group of people in consideration [in the order of when immigration cases are heard].” It doesn’t matter how long some people have been waiting [for their case to be adjudicated.] This is line-cutting. There is this sort of political messaging. It is absolutely inappropriate. It is not the way to run a court. Also, getting rid of this sort of thing would bring a lot more order to a system, and a lot more defensible actions on the part of the government, if they had to actually play by the rules—honoring a court system and a judicial system, they could not do this. They would have to come up with other means, under principles more consistent with our American democratic principles—rather than seeking to use the courts as a law enforcement agency.
Sound like there is a huge irony in the DOJ’s decertification effort—I mean, rather than having “managerial” and policy power, you folks have very, very little in that regard—right?
Tabaddor: That’s right. Not only have we never gotten to the more ideal point I have described here, but nowadays we even have less and less control, over our jobs. We are now subject to so much micromanagement and control—from quotas to deadlines, to the number of cases we are supposed to schedule, etc. We also don’t have control over any of our staff. The department don’t provide us with the level of staff we need. They don’t provide us with the law clerks we need. They don’t provide us with enough space, training or technology we need. Again, there isn’t a single aspect of my job that isn’t being micromanaged or controlled—and under-resourced. There’s not a single aspect of my job that isn’t being thoroughly coordinated with the Department of Homeland Security, and all the other law enforcement aspects of the administration. All of this is why we say, look, this situation is just totally un-American—what is being done with our immigration court system, and our judges. It would not be tolerated in any other setting.
Do you think you are getting traction, so change might come and the immigration courts get to a better place?
Tabaddor: I think this is a moment that has highlighted and brought a lot of forces together, in support of recognition of the need for independent immigration courts. That’s something that has never happened before. In this way, I think, there is a consciousness-raising experience that has happened across the community—in our legal community, too—which is connecting to these issues. What I am less optimistic about is our representatives on Capitol Hill. Even though they know this is the right answer, they are gridlocked. Again, though they know it’s the right answer, between every other crisis happening on a regular basis and immigration being such a polarizing issue, it’s hard.
Any further, closing thoughts here?
Tabaddor: Some do not appreciate the situation—that it is not or should not be partisan, that fixing the court is neither a right or a left issue, you know? When I talk to the Republican side, I say, “Give us the power to be judges and we will make sure that the law is followed. For instance, that criminal aliens and people who should be seen as a problem—all of this will be dealt with in a speedy and defensible manner.” When I talk with the Democrats, I say, “Give us our independence—and we will make sure this is done in a fair manner.” It would be a win-win, you see? Right now, for example, when you put the people on the border ahead of every other issue—then you push a lot of other people to the back of the line. Fixing this is not about left-wing or right-wing, it’s about our American system, about fairness and law. I also want to reiterate there are hundreds of thousands of cases in backlog and we have inadequate resources, but our judges are in court every day and frankly they are being worked to the bone. It is a crushing workload.