Federal Appeals Court Overturns FLRA Decision in Immigration Judges’ Union Case Amid Calls for an Independent Court
On January 28, 2022, the U.S. Court of Appeals for the District of Columbia Circuit overturned the Federal Labor Relations Authority (FLRA)’s decision to strip the National Association of Immigration Judges (NAIJ) of its collective bargaining powers.
While the FLRA stated the immigration judges are comparable to managers, the appeals court determined the authority “failed to offer a reasoned explanation for its decision that the statute does not require midterm bargaining.”
The court ruled that federal employees may seek to bargain with their agency over how new issues arise during the term of a collective bargaining agreement which the agreement does not address. Further, the court observed that during negotiations agencies may include a zipper clause that limits or prevents midterm bargaining, however, the decision noted that the clause is not mandatory.
The FLRA’s 2-1 decision rejected requests by the NAIJ and the Justice Department’s Executive Office of Immigration Review (EOIR) to overturn its initial decertification decision in November 2020. The Justice Department withdrew its complaint against the union last month–recognizing the nearly 50-year-old labor organization–and the EOIR has resumed meetings with union representatives about issues of concern to judges.
When the FLRA decision was announced, Matt Biggs, National President of the International Federation of Professional and Technical Engineers—a federation including the NAIJ—stated some blame rests with Senate Majority Leader Chuck Schumer for failing to schedule nomination hearings for new members of the FLRA.
"Make no mistake about it, this draconian and ideologically fueled action taken by the FLRA would have been avoided if the Senate had moved President Biden’s FLRA nominees last year. Our members are paying a terrible price, and the Senate must immediately prioritize this when it returns from recess," Biggs recounted.
As a Justice Department component, EOIR is not an Article III court, but a court within the executive branch in accordance with Article II of the Constitution. This structure makes the system susceptible to administration priorities, as immigration judges report to the attorney general—who determines their policies and guidelines—rather than the impartial structure the judges of Article III are bound by.
“The timing of this month’s [FLRA] decision, coming only hours after a Congressional committee hearing on the need for an independent Article I immigration court, further highlights the stakes for fairness and the rule of law,” Tsankov concluded.
Last week, Tsankov was among witnesses testifying before the House Subcommittee on Immigration and Citizenship regarding a potential independent immigration court. Witnesses argued political pressures exacerbate internal issues while judges face constraints with an overwhelming caseload, in addition to insufficient funding. With nearly 1.6 million cases pending—more than double the number reported five years earlier—each judge has an average workload of more than 2,700 cases, people who immigrate to the U.S. can wait years to get a court hearing, much less a decision.
Tsankov noted that in a period where the Department of Homeland Security (DHS) saw a 300 percent budget increase, the immigration courts received a budget increase of 70 percent—to address related issues.
“To fix the backlog and other problems, Congress should remove the immigration courts from the DOJ and create an independent, Article I immigration court," Judge Tsankov stated, "The problems compromising the integrity and proper administration of the immigration court underscores the need to remove it from the political sphere of a law enforcement agency and assure its judicial independence."
Karen Grisez, former chair of the American Bar Association (ABA) Commission on Immigration, advocated for an independent immigration court system as the current system lacks basic procedural safeguards that are essential to impartial adjudications. Therefore, Grisez states that an Article I court is the best option to advance the rule of law in immigration adjudication by promoting independence and due process.
“Although the immigration courts provide some of the elements of due process under the current system, they fall short of providing full and fair hearings in too many cases. Many of the shortcomings of the current system do not stem primarily from existing rules and written procedures,” Grisez reported, “But in the way those are interpreted and applied by representatives of EOIR. And further, the location of EOIR within DOJ, under absolute control of the Attorney General, is at the root of that problem.”
The ABA has encouraged for an independent immigration court since 2010, publishing a study on the state of the immigration court system that it reaffirmed in a supplementary report in 2019.
Andrew Arthur, a former immigration judge and Resident Fellow in Law and Policy for the Center for Immigration Studies, contends, however, that separating the immigration courts from the Justice Department would not protect them from political influence. Rather, he suggests an immigration circuit court would achieve guarantee uniformity and have the capacity to address the backlog of cases.
“Any proposal to restructure the immigration courts that would slow down the hiring of IJs by making the hiring of those judges’ dependent on any external party would do a disservice to the alien respondents, the government, and justice itself,” Arthur detailed, “The creation of a new circuit court, solely dedicated to immigration, though would provide the benefits suggested by CRS, and would expedite appeals because each of the judges on that court would be a subject-matter expert in immigration.”
