“Federal employees shouldn’t have to go through a cumbersome administrative process to challenge sweeping prior restraints on their speech,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute. “The Supreme Court should make clear that public servants can get immediate relief from gag orders by challenging them directly in court.”

In 2020, the Knight Institute filed the lawsuit on behalf of the National Association of Immigration Judges (NAIJ) challenging an Executive Office for Immigration Review policy that imposes an unconstitutional prior restraint on the speech of immigration judges. The district court dismissed the case in 2023, holding that the Civil Service Reform Act of 1978 (CSRA) requires NAIJ to raise its claims administratively before seeking judicial review. In June of last year, the Fourth Circuit revived the legal challenge, expressing concern that the agencies charged with hearing federal employment claims—the Office of Special Counsel and Merit Systems Protection Board—may no longer be operating as Congress intended. The government’s petition, filed on December 23, challenges this determination. In the portion of its ruling that NAIJ’s cross-petition challenges, the Fourth Circuit went on to say that, if the CSRA is operating as intended, NAIJ’s members would need to challenge the prior restraint on their speech through the CSRA’s scheme of administrative review.

“The gag order that this administration has imposed on the speech of immigration judges is brazenly unconstitutional,” said Alex Abdo, the litigation director at the Knight First Amendment Institute. “Federal employees have unique insights to offer on the operation of government, and that is particularly so for immigration judges, who have a front row seat to the ongoing upheaval of our immigration system.”

Late last year, the Fourth Circuit denied the government’s petition for rehearing en banc. On December 19, the Supreme Court rejected the government’s request to stay the effect of the appeals court decision pending further proceedings before the Court. On December 23, the Trump administration filed a petition for certiorari, asking the Supreme Court to summarily reverse the Fourth Circuit’s ruling requiring further consideration of whether the CSRA is operating as Congress intended. In addition to the cross-petition filed today, NAIJ will oppose the government’s petition by March 2. 

The NAIJ is a nonpartisan, nonprofit voluntary association of federal immigration judges. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities. 

Read today’s cross petition for cert here.

Read more about the lawsuit, Margolin v. National Association of Immigration Judges, here.

Lawyers on the case include, in addition to Krishnan andAbdo, Xiangnong (George) Wang and Jameel Jaffer of the Knight First Amendment Institute, and Victor M. Glasberg of Victor M. Glasberg & Associates.  

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org

“The Supreme Court was right to reject the government’s request for a stay of proceedings,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute, who argued the case on behalf of NAIJ in the Fourth Circuit last December. “It should also quickly reject the government’s soon-to-be filed cert petition. The restrictions on immigration judges’ free speech rights are unconstitutional and it’s intolerable that this prior restraint is still in place.”

In 2020, the Knight Institute filed the lawsuit on behalf of NAIJ challenging an Executive Office for Immigration Review policy that imposes an unconstitutional prior restraint on the speech of immigration judges. The district court dismissed the case in 2023, holding that the Civil Service Reform Act of 1978 (CSRA) required NAIJ to raise its claims administratively before seeking judicial review. In June of this year, however, the Fourth Circuit revived the legal challenge, expressing concern that the agencies charged with hearing federal employment claims—the Office of Special Counsel and Merit Systems Protection Board (MSPB)—may no longer be operating as Congress intended. The court sent the case back to the district court to consider whether recent factual developments—including the president’s termination of the former special counsel and MSPB chair without cause—had so significantly undermined the functionality and independence of the agencies that the CSRA no longer bars federal employees from suing over adverse employment decisions directly in federal court. In November, the Fourth Circuit denied the government’s petition for rehearing en banc, and on December 5, the government asked the Supreme Court to issue a stay of the appeals court decision while it prepares a petition asking the Supreme Court to overturn the Fourth Circuit’s decision. 

The NAIJs opposition brief filed on December 10 argued that the government has not demonstrated that any harms it might incur outweigh those facing immigration judges who continue to be silenced on matters of public urgency. It also explained that a Supreme Court review of the lawsuit would be premature, noting that a lower court has not yet resolved the question of whether the relevant agencies charged with reviewing employment disputes are functioning free from political interference.

The NAIJ is a nonpartisan, nonprofit voluntary association of federal immigration judges. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities. 

Read the Supreme Court’s order here.

Read the NAIJ’s opposition brief here.

Read more about the lawsuit, Margolin v. National Association of Immigration Judges, here.

Lawyers on the case include, in addition to Krishnan, Xiangnong (George) Wang, Noah Kim, Alex Abdo, and Jameel Jaffer of the Knight First Amendment Institute.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

“The Supreme Court should deny the government’s extraordinary request to halt this lawsuit,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute, who argued the case on behalf of NAIJ in the Fourth Circuit last December. “There is no good reason for further delay, especially when the gag order at issue prevents immigration judges from sharing their perspectives with the public every day it remains in effect.”

In 2020, the Knight Institute filed the lawsuit on behalf of NAIJ challenging an Executive Office for Immigration Review policy that imposes an unconstitutional prior restraint on the speech of immigration judges. The district court dismissed the case in 2023, holding that the Civil Service Reform Act of 1978 (CSRA) required NAIJ to raise its claims administratively before seeking judicial review. In June of this year, however, the Fourth Circuit revived the legal challenge, expressing concern that the agencies charged with hearing federal employment claims—the Office of Special Counsel and Merit Systems Protection Board (MSPB)—may no longer be operating as Congress intended. The court sent the case back to the district court to consider whether recent factual developments—including the president’s termination of the former special counsel and MSPB chair without cause—had so significantly undermined the functionality and independence of the agencies that the CSRA no longer bars federal employees from suing over adverse employment decisions directly in federal court. In November, the Fourth Circuit denied the government's petition for rehearing en banc, and on December 5, the government asked the Supreme Court to issue a stay of the appeals court decision while the government prepares a petition asking the Supreme Court to overturn the Fourth Circuit’s decision. 

Today’s brief argues that the government has not demonstrated that any harms it might incur outweigh those facing immigration judges who continue to be silenced on matters of public urgency. It also explains that a Supreme Court review of the lawsuit would be premature, noting that a lower court has not yet resolved the question of whether the relevant agencies charged with reviewing employment disputes are functioning free from political interference.

The NAIJ is a nonpartisan, nonprofit voluntary association of federal immigration judges. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities. 

Read today’s brief here.

Read more about the lawsuit, National Association of Immigration Judges v. Owen, here.

Lawyers on the case include, in addition to Krishnan, Xiangnong (George) Wang, Noah Kim, and Alex Abdo of the Knight First Amendment Institute.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org 

“Federal employees shouldn’t have to go through a cumbersome administrative process to challenge a sweeping prior restraint on their political speech. That’s especially true now, with the Trump administration’s hobbling of the federal agencies responsible for safeguarding the rights of federal employees,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute, who argued the case on behalf of NAIJ in the Fourth Circuit last December. “We look forward to continuing to fight for the rights of immigration judges to speak on matters of urgent public interest, and the right of the public to hear from them.”

In 2020, the Knight Institute filed the lawsuit on behalf of NAIJ challenging a policy of the Executive Office for Immigration Review (EOIR) that prohibits immigration judges from speaking or writing publicly in their personal capacities about immigration or the agency that employs them without prior approval. The district court dismissed the case in 2023, saying that the challenge should have been filed with the U.S. Special Counsel—the federal agency that investigates and prosecutes federal employment decisions—but the Fourth Circuit today expressed concern that the Special Counsel and the Merit Systems Protection Board—the body that reviews such decisions—may no longer have the independence necessary to safeguard the rights of federal employees. The court remanded the case to the district court to consider “whether the text, structure, and purpose” of the statute that establishes this review scheme “has been so undermined” that it no longer bars federal employees from suing over adverse employment decisions directly in federal court.  

The NAIJ is a nonpartisan, nonprofit voluntary association that represents all nonmanagerial immigration judges in the United States. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities. But a policy issued by EOIR in 2017, and substantially revised in 2020, sharply curtailed the ability of immigration judges to speak publicly in their personal capacities.  EOIR revised the policy again in 2021 following a review, but the policy’s central flaws remain.

“We applaud the Fourth Circuit decision allowing NAIJ’s lawsuit to protect immigration judges’ First Amendment and Fifth Amendment rights to proceed,” said Matthew Biggs, president of the International Federation of Professional and Technical Engineers. “The policy preventing immigration judges, acting in their personal capacity, from educating the public is misguided, leaves valuable perspectives out of the public discourse, and denies the speech rights of immigration judges.  The court agreed that our concerns shouldn’t be stuck in a broken administrative process, and we’re looking forward to having our case fully heard on the merits.”

Read today’s decision here.

Read more about the lawsuit, NAIJ v. Owen, here.

Lawyers on the case include, in addition to Krishnan, Stephanie Krent, Xiangnong (George) Wang, and Alex Abdo of the Knight First Amendment Institute. 

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

In a brief, unsigned, and unpublished opinion, the court affirmed the district court’s decision, which held that NAIJ may not bring its First Amendment claim in federal court until it first goes through the administrative process set out in a federal labor relations statute. That process was established by Congress in 1978 to resolve highly specific bargaining disputes between unions and employers.

“Immigration judges shouldn’t have to go through a cumbersome labor relations process to vindicate their free speech rights. To state the obvious, the government’s gag order on immigration judges is not a collective bargaining problem—it’s a First Amendment problem,” said Ramya Krishnan, staff attorney at the Knight First Amendment Institute, who argued the case on behalf of NAIJ in the Fourth Circuit in January. “Forcing judges to bargain over their constitutional right to free speech only serves to silence them for longer.”

The NAIJ is a nonpartisan, nonprofit voluntary association that represents all nonmanagerial immigration judges in the United States. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities. But a policy issued by EOIR in 2017, and substantially revised in 2020, sharply curtailed the ability of immigration judges to speak publicly in their personal capacities. EOIR revised the policy again in 2021 following a review, but the policy’s central flaws remain.

“The public has an interest in understanding the immigration court system and the impact of recent changes on it,” said Mimi Tsankov, president of the National Association of Immigration Judges. “Many immigration judges wish to educate the public about these matters, but EOIR’s policy prevents them from doing so. By requiring judges to challenge the policy through the administrative process, the court has abdicated its duty to ensure that our free speech rights—and the public’s—are adequately protected. While we’re disappointed by the court’s decision, we plan to continue fighting to ensure the gag order is lifted.”

Because the opinion is unpublished, it will not constitute binding precedent in the Fourth Circuit. Read today’s decision here.

More on the lawsuit, NAIJ v. Neal, here.

Lawyers on the case include, in addition to Krishnan, Stephanie Krent, Alyssa Morones, and Alex Abdo of the Knight First Amendment Institute.

For more information, contact Adriana Lamirande, Knight First Amendment Institute, adriana.lamirande@knightcolumbia.org.

“Part of the job of an immigration judge is to educate the public about the immigration courts and the role they play in society,” said Judge A. Ashley Tabaddor, President of the National Association of Immigration Judges. “This policy prevents us from doing this critical work, undermining public understanding of and trust in the immigration courts in the process.”

For years, EOIR allowed immigration judges to speak in their personal capacities on issues relating to immigration, so long as they made clear that they were not speaking on behalf of the agency. EOIR changed this policy in 2017 to require judges who wished to speak publicly in their personal capacities to get prior approval. In January of this year, EOIR issued an even more restrictive policy that categorically prohibits immigration judges from speaking in their personal capacities about immigration law or policy or about EOIR programs or policies. On all other topics, the policy requires immigration judges to obtain EOIR’s prior approval.

“We are in the midst of an urgent public debate about immigration reform in this country and some of the most crucial voices in that debate are being silenced,” said Ramya Krishnan, Staff Attorney at the Knight First Amendment Institute. “Immigration judges have unique insight into the immigration system, but this policy prevents them from sharing that insight without facing the possibility of disciplinary action or even losing their jobs.”

Today’s complaint notes that the change in EOIR policy comes “at a time of intense scrutiny of the nation’s immigration system. President Trump made immigration a signature issue of his presidential campaign, and his administration has made sweeping changes to the immigration court system. … Immigration judges are uniquely positioned to inform the public on these issues, but the 2020 Policy prevents them from doing so.” Moreover, the complaint notes, “[i]n recent months, immigration judges have also been prevented from commenting on the impact of the COVID-19 pandemic on the immigration courts and detained immigrants.”

A copy of today’s complaint can be found here.

EOIR’s 2017 policy was first released publicly through a Freedom of Information Act request submitted as part of a broader Knight Institute investigation by writer-in-residence Cristian Farias into First Amendment restrictions in the immigration context. In January, the Knight Institute sent a letter to EOIR’s Director James R. McHenry asking him to suspend the 2017 policy. A copy of the letter and policy can be found here.

EOIR’s 2020 Policy follows a petition filed by DOJ to decertify NAIJ. That petition, filed on August 9, 2019, proceeded to a hearing on January 7, 2020, and a decision is pending. If the petition is successful, NAIJ officers (who are currently exempted from the policy) will no longer be able to speak in their representative activities without EOIR’s prior approval.

For more information, contact: Lorraine Kenny, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org. 

The Knight Institute represents NAIJ in its legal challenge to the policy, and in our legal briefs, we’ve explained why the policy violates the First and Fifth Amendments. In April, the parties in the case agreed to stay the challenge pending the Biden administration’s review of the policy, which is ongoing. The Senate letter asks the Attorney General to provide information about that review, and to explain how he intends “to alter [the] policy to ensure that immigration judges are able to engage in protected First Amendment speech.” It seeks a response by June 14, 2021.

The letter will add pressure on the Biden administration to abandon the policy and replace it with one that is consistent with the First Amendment. We’re hopeful the administration will announce its intention to do so in the coming weeks.

In conjunction with attorneys at the Knight First Amendment Institute at Columbia University, we have asked a federal district court to permanently enjoin the speaking prohibitions as an unconstitutional prior restraint.

Immigration judges have important views to share about the nation’s immigration courts. Historically, law schools, bar associations and countless other legal and professional organizations have relied on the perspectives of immigration judges. Judges have been panelists and speakers and authors, educating the public about immigration courts and contributing to the national dialogue. Their insights are especially important now because of the administration’s focus on immigration enforcement, including sweeping changes to the immigration court system and governing regulations.

Judges’ views are also critical as the immigration courts grapple with how and to what extent to hold court proceedings in the middle of a pandemic, especially because DOJ has prioritized case completions over public health. For all of these issues, immigration judges are at the front lines of the immigration system and have unique and valuable perspectives to share.

The gag order on immigration judges is new. Their ability to speak publicly came to an abrupt end in 2017 when new immigration court management began to strictly limit the ability of the judges to speak at public events in their personal capacities. The policy tightened in 2020 and now prohibits judges from speaking or writing publicly in their personal capacities about immigration and the immigration courts.

It also requires judges to seek approval before speaking or writing about any other matter of public concern. DOJ has prevented judges from speaking at law schools, bar associations and even seventh-grade social studies classes. Because requests for speaking are now routinely denied, many judges have simply stopped speaking publicly — and the public has stopped asking.

The only voice that can speak on behalf of these judges is the National Association of Immigration Judges, the union that represents the judges as a group. Union speech is explicitly protected by federal labor law. (This protection is the only reason we, as union officials, can write this commentary.) The few union officers who can speak publicly, however, are no substitute for the individual voices and involvement in the community of hundreds of immigration judges across the country.

And even this limited union voice is at serious risk. In 2019, DOJ filed an action to decertify the judges’ union. If this succeeds, it will close the last remaining avenue for immigration judges to share their unfiltered views. The decertification petition went to trial in January 2020. We are awaiting a decision.

The policy that gags immigration judges highlights a structural flaw in the immigration court system, which places these courts under law-enforcement control. Immigration judges are not part of an independent court system. Instead, the Justice Department, headed by the attorney general, the nation’s chief law-enforcement officer, runs the immigration courts. Their judges are treated as “government attorneys” subject to policies and priorities determined by the political whims of the executive branch, rather than by traditional norms governing judges’ roles in the community.

This means that the political pendulum of immigration enforcement priorities swings back and forth as administrations change. Judges presently are subject to potential discipline if they grant too many continuances or if they are overturned even occasionally on appeal by administrative adjudicators appointed by, and loyal, to the current administration. In short, immigration courts have become a tightly managed weapon in the immigration enforcement apparatus, and it’s not a pretty picture for those who value independent courts and impartial decision-makers.

In this context of vigorous immigration enforcement, sweeping proposed regulatory changes, a global health crisis, the weaponization of the immigration courts and an existential threat to the continued existence of the judges’ union and its free-speech rights, the suit we recently filed to vindicate the First Amendment rights of individual immigration judges is a critical effort to allow them to return to the public debate about immigration and our nation’s immigration courts.

A policy issued by the Justice Department in 2017 effectively prevents immigration judges—and their colleagues at the Executive Office of Immigration Review (EOIR)—from speaking publicly about their work. In response to a records request, the Knight First Amendment Institute obtained the policy and in January sent a letter to the agency explaining why it was unconstitutional. Less than two weeks later, the agency issued a revised policy, which we have obtained and are releasing today. Unfortunately, the revisions only make things worse.

As it currently stands, the policy requires all EOIR employees to obtain supervisory approval before speaking or writing in their personal capacities. The problem with this policy (and its previous incarnation) is that government employees do not forfeit their free speech rights upon entering the federal workforce. They retain the right to speak out as citizens on matters of public importance, and the government can silence them only if it can show that their speech would interfere with the government’s operations so significantly that it would outweigh both the employees’ interests in speaking and the public’s interests in hearing what they have to say. The 2017 policy failed that test, for the reasons we explained in our letter. The policy issued in January fares no better. In nearly every way, it is even more restrictive than its predecessor.

First, the revised policy sweeps in much more speech. While the original policy applied only to “speaking engagements,” the revised policy applies also to “written pieces intended for publication in any print or online media.” Immigration judges and other EOIR employees must seek agency approval nearly every time they wish to write or speak publicly.

Second, the revised policy now treats much personal-capacity speech (which is protected by the First Amendment) as official-capacity speech (which isn’t). It defines official-capacity speech as any speech relating to “immigration law or policy issues, the employee’s official EOIR duties or position, or any agency programs and policies.” It also states that although senior EOIR employees are not categorically prohibited from speaking at an engagement in their personal capacity, most invitations to do so “are necessarily invitations to speak in an official capacity.”

Because the First Amendment does not protect official-capacity speech, the Justice Department’s attempt to expand its definition is really an attempt to suppress more protected speech. But as the Supreme Court recently held, the dividing line between personal and official speech is whether the speech is within the scope of an employee’s job duties, not whether the subject matter of the speech relates to her employment or whether the employee is senior within her organization. Here, the agency is attempting to redefine protected personal speech as unprotected official speech.

Third, the new policy makes the process for preapproving speech even more onerous than before. As originally drafted, the policy required employees to seek supervisory approval for all personal-capacity speaking engagements, and instituted a second level of review for speaking engagements related to immigration. The agency now requires an employee to submit to four levels of review: an initial review by their supervisor, a review by the agency’s centralized speaking engagement team, a review by the agency’s ethics program, and a second, final review by their supervisor.

This new process creates more opportunities for abuse and delay. The policy doesn’t set time limits for any stage of review, meaning that an employee’s request could languish for weeks while ostensibly being reviewed by the ethics program, or that a recommendation to issue final approval could sit in a supervisor’s inbox until long after the event has taken place. The policy also gives supervisors unfettered discretion to approve or deny requests, both at the first and last stage of review.

Even if the agency could point to a legitimate interest in restraining speech—and, to be clear, it hasn’t yet publicly explained why it believes this policy is necessary or what problems the policy is meant to address—the policy sweeps too broadly. It applies to nearly all public speaking and writing in an employee’s personal capacity. And it empowers officials to “roam essentially at will,” granting or denying permission to speak according to their whims.

The risk that this policy silences protected speech isn’t just hypothetical. Last week, my colleague Cristian Farias (the Knight Institute’s writer-in-residence) wrote about the chilling effect of the 2017 policy in The Atlantic. As Farias explained, organizations like the Federal Bar Association, American Immigration Lawyers Association, and Human Rights First used to be able to count on the expertise of immigration judges at their events and trainings. No longer. Judges have even been prevented from talking to law students and officiating naturalization ceremonies.

The Supreme Court has long recognized that “[g]overnment employees are often in the best position to know what ails the agencies for which they work” and that “public debate may gain much from their informed opinions.” Since the Justice Department’s policy was first issued, debates about the fairness, integrity, and independence of our immigration system have only become more urgent. Yet the voices of those who work within that system have been muted. EOIR employees have a right to speak, and the public has a right to hear them. The Justice Department must rescind its unconstitutional policy.

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.

Read more.