8/7/20, 9:46 AMImmigration Judges Union Survives, For Now - Government Executive

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Immigration Judges UnionSurvives, For Now

Federal Labor Relations Authority regional directorrejects arguments by the Justice Department thatimmigration judges are managers and therefore

their union should be decertified.AUGUST 4, 2020

IMMIGRATION UNIONS

ERICH WAGNER

A Federal Labor Relations Authority regional directorlast week reaffirmed that federal immigration judgesare not management officials and therefore can

unionize, rejecting an effort by the Justice Department todecertify the National Association of Immigration Judges.

Last year, the Justice Department announced that it would seekto bust the vocal immigration judges union, arguing thatcircumstances had changed since the FLRA last reviewed—andupheld—the judges’ eligibility to bargain collectively in 2000.At a hearing in January, attorneys for the department arguedthat although immigration judges’ duties remain entirelynonsupervisory in nature, changes to how the Board ofImmigration Appeals may review the judges’ decisions elevatetheir work to influencing agency policy, making themmanagement and thus ineligible to unionize.

Last week, FLRA D.C. Regional Director Jessica Bartlettrejected those arguments, as well as a theory that the Lucia v.Securities and Exchange Commission Supreme Courtdecision had a bearing on immigration judges’ collectivebargaining status. The Lucia decision held that someadministrative law judges are inferior officers under theConstitution and require presidential appointments rather thancompetitive hiring.

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8/7/20, 9:46 AMImmigration Judges Union Survives, For Now - Government Executive

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A key argument made by Justice Department officials was thatjudges in the Executive Office of Immigration Review nowreceive more deference to their factual findings than when theFLRA last reviewed whether they are managers in 2000. ButBartlett said the change in deference is not enough to justifydecertifying the union.

“The deference granted to [immigration judges'] factualfindings [does] not turn judges into management officials,” shewrote. “The facts exist, are presented to the judges in the formof evidence, and can later be superseded by new or previouslyunknown evidence, or can be subject to re-examination byorder of the [Bureau of Immigration Appeals] . . . Even in theunusual circumstances where the facts may influence a futuredecision, they remain subject to review, and as such, the addeddeference now granted to the [immigration judges'] finding offacts does not create a scenario where the [judges] are creatingor influencing agency policy.”

The focal point of who is and is not eligible to bargaincollectively at the Executive Office of Immigration Review iswhether the employee shapes policy or merely implements it.

“The [Bureau of Immigration Appeals] has a right to overturnits prior precedent and to make new precedent,” Bartlett wrote.“The [immigration judges] may not overturn [bureau] precedentor create their own precedent. That unchanged difference is thekey difference that supported the [FLRA] finding the [Bureauof Immigration Appeals] members are management officialswhile the [immigration judges] are not. That difference has notchanged since the 2000 authority decision, and that differencesupports the continued upholding of the conclusion that[immigration judges] do not make policy, but instead, onlyassist in the implementation of agency policy.”

Bartlett also rejected the Justice Department’s “novel” theorythat Lucia v. SEC applies to immigration judges.

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“Lucia addressed administrative law judges at the Securitiesand Exchange Commission, not Department of Justiceimmigration judges, who are appointed under different statutoryschemes, and are subject to differing levels of performancereview, supervision and termination," the decision stated. "Noprecedent was presented to support the conclusion that Luciawas intended to or does apply to [immigration judges] . . .Indeed, Lucia is totally silent on the issue, and thus, fails tostand for the proposition for which the agency asserts it.”

The Justice Department has 60 days to request that the fullFLRA board review this decision. But at least for now, officialsat the National Association of Immigration Judges said they are“pleased” with the decision.

“With the public facing a health crisis and desperate forcourtroom safety, the Department of Justice and [ExecutiveOffice of Immigration Review] have focused limited resourceson litigating a matter already decided two decades ago,” saidunion president Ashley Tabaddor. “It’s time to drop thisdecertification action and other efforts to silence judges andinstead to focus on the important work of our courts."

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