Free Speech For Judges?

The American Judges Association has long held that the immigration judges of the United States deserve our support. They have very high caseloads and are in a rather untenable position of being under the Department of Justice……in effect they work for the prosecutors who appear before them. That untenable position is now taking the form of a lawsuit.

On July 1, the National Association of Immigration Judges (NAIJ) sued the Department of Justice (DOJ) in the Eastern District of Virginia, alleging that new DOJ rules about public statements by immigration judges impose unconstitutional restraints on their right to free speech. NAIJ is a union representing immigration judges employed by the DOJ.


The policies NAIJ is challenging were implemented by the DOJ’s Executive Office for Immigration Review (EOIR). The first order, issued in 2017, required judges to obtain preapproval before speaking at an event in their personal capacity, and prohibited Deputy Chief Immigration Judges and Assistant Chief Immigration Judge from doing so at all. In 2020, the EOIR replaced this policy with a more restrictive measure, categorically preventing immigration judges from speaking in their personal capacity about immigration and EOIR programs.


In this moment, the plaintiffs note, the rules prohibit immigration judges from speaking about how Covid-19 has impacted immigration courts and those who are currently detained. Immigration courts largely remained open amid the pandemic, though some courts closed briefly for cleaning before reopening after court employees tested positive for Covid-19.

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