The National Association of Immigration Judges represents judges employed by the Executive Office for Immigration Review (EOIR), a component of the Department of Justice (DOJ). Immigration Judges are executive branch employees, and are therefore subject to the supervision of the President of the United States or his designates. Most, if not all, executive branch employees are supervised, reviewed, evaluated, and managed by numerous levels of management. No one in the Executive Branch exercises independent judgement that is not reviewed by another Executive Branch employee, if not the President himself

Immigration Judges are first supervised by the Chief Immigration Judge, Deputy Chief Immigration Judges, and Assistant Chief Immigration Judges, as well as the Attorney General, in both the exercises of their authority and administratively. Immigration Judges are not independent, like real judges, but neutral, in that they do not represent the Department of Homeland Security (DHS), which brings cases to the EOIR. Aliens may not bring cases independently to the EOIR, but only in response to an action taken against them by DHS.

Kritarch Ashley Tabaddor

Now, most attorneys in the DOJ are not unionized, e.g., represented by a bargaining unit in negotiating working conditions and disciplinary action, but not wages, benefits, or other conditions of employment. In Federal unions, pay and benefits are not authorized as those are set by legislation. Represented employees are also prohibited from taking action such as strikes or work slowdowns.

In fact, almost no DOJ attorneys are represented, including Assistant U.S. Attorneys and Trial Attorneys, the two largest group of attorneys in the DOJ. Generally that is because the nature of their work, including prosecuting and disciplining labor organizations, makes representation a conflict. Also, Immigration Judges are employees involved in national security work, mostly related to aliens being removed who are terrorists. Similarly, most employees involved in investigating any crime are prohibited from being represented by unions. For example, no FBI, DEA, or ATFE Special Agents are unionized. Similarly Special Agents throughout the Federal government are not unionized, e.g., Secret Service, Homeland Security Investigations, Offices of Inspector General, etc. Generally, the nature of their work makes union representation impossible.

Since Immigration Judges are similarly involved, they should not be unionized. Sadly, they are. Since they represent the DOJ in legal proceedings, they should not be. Now the Trump Administration is moving to decertify the Immigration Judge union, something tried earlier by the Clinton Administration. This is good because of the overt and illegal political involvement by individual judges, already forbidden under the Hatch Act which prohibits Federal employees from acting politically in their positions.

The Justice Department has moved to decertify the union of immigration judges, a maneuver that could muffle an organization whose members have sometimes been openly critical of the Trump administration’s immigration enforcement agenda. The department filed a petition on Friday asking the Federal Labor Relations Authority to determine whether the union, the National Association of Immigration Judges, should have its certification revoked because its members are considered “management officials” ineligible to collectively organize, according to a Justice Department spokesman. [Trump Administration Moves to Decertify Outspoken Immigration Judges’ Union, by Christina Goldbaum, NYT, August 10, 2019]

Note the #Lugenpresse headline. “Outspoken” tells the reader much. It means that there is an underlying political issue, not only with the decertification, but the motive for resisting the desertification. And the politicized kritarchs of the EOIR instantly admitted the issue is not management, but what the judges are doing, and what they think they should be doing, which is aiding illegal aliens.

The move suggested escalating tensions between overwhelmed immigration judges desperate for greater resources and a Justice Department pushing them to quickly address a backlog of immigration cases. “This is a misguided effort to minimize our impact,” said Judge Amiena Khan, vice president of the judges’ union, which has publicly criticized the use of a quota system in immigration court and other attempts to speed up proceedings.

Note that Judge Khan is a radical and approves 93% of asylum cases in her court. And it’s not about lazy judges not wanting to do their work. It is about the decisions they make regarding aliens.

Kritarch Amiena Khan

“We serve as a check and balance on management prerogatives and that’s why they are doing this to us,” said Judge Khan.

Now an employee of the DOJ or any other component of the Executive Branch who thinks they serve as a check on the President or other management is in the wrong position. Subordinate employees implement the policy of the President and do not serve as a check on him, nor on the Attorney General.

And we get to the nub of the issue: Judges don’t want to be supervised or checked in their machinations to assist illegal aliens:

Both Judge Khan and the union president, Judge Ashley Tabaddor, have spoken out repeatedly against what they say is an attempt to turn immigration judges from neutral arbiters of the law to law enforcement agents enacting the White House’s policies. They have called for immigration judges to be independent of the Justice Department. Last year, the union criticized the department’s quota system, which required immigration judges to complete 700 cases per year, as well as a move to bar judges from an administrative tool they had previously used to reduce their caseloads. The union says the focus on efficiency impedes judges’ ability to work through complicated cases and could affect the due process rights of immigrants in court.

Tabaddor is notorious for her illegal political activity as an Immigration Judge, which your correspondent has documented. And the union doesn’t like it that the DOJ has moved in the past to discipline recalcitrant Immigration Judges who don’t like being supervised and don’t like following law and policy. Specifically note the end of administrative closure, the above tool that reporter Goldbaum is so concerned about. That was the initial tool of the Obama Regime Administrative Amnesty, with a long history of subversion of immigration enforcement. Immigration Judges have their own program, and it is amnesty for illegal aliens, one by one if necessary.

Sadly though, the DOJ is hanging its hat on the management issue. Fortunately, Immigration Judges do manage local court personnel, or at least have personnel working at their direction, as admitted in the article.

“I can’t work alone, I am reliant on support staff,” said Judge Khan. “Right now there are two judges to one support staff person,” which has delayed the progress of cases despite the additional judges, she said.

But there is an issue: The position description for Immigration Judge clearly states it is a non-supervisory position.

This is a non-supervisory position. [Immigration Judge Announcement, DOJ, undated]

This means that the DOJ will have a hard time making the decertification stick if they are relying on the management issue. They should move on the national security or policy implementation issue that the position is inherently incompatible with union representation. I am afraid, like the Citizenship question issue on the Census, which was lost, this may be lost as well due to a bad legal strategy. Better to just declare the position a national security position and decertification is automatic. George Bush did this with Special Agents in U.S. Immigration and Customs Enforcement (ICE) and it was upheld. Time for executive vigor.