Republican Sen. Chuck Grassley is accusing the Biden administration of improperly attempting to silence immigration judges who frequently highlight shortcomings in the immigration court system, calling a recent Justice Department decree a “blatant attempt” to “discourage and obstruct” federal workers from exercising legally protected speech.
The Justice Department last month informed the National Association of Immigration Judges that they must seek supervisor approval before engaging in any public remarks or press interviews, according to a copy of the email obtained by ABC News.
Sheila McNulty, the newly appointed chief immigration judge, acknowledged in her email that “the agency understands this is a point of contention” for the judges’ union, but ordered leaders to consult with the department before agreeing to participate “in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).”
The policy change reverses more than 50 years of precedent, according to Matt Biggs, the president of the International Federation of Professional & Technical Engineers (IFPTE), a broader organization that includes the judges’ union. Immigration judges, who are federal employees housed within the Justice Department, have for decades been entitled to speak publicly at forums, before Congress, and in press interviews.
McNulty, who was appointed chief immigration judge in January, did not expressly restrict the judges from speaking to Congress, but invoked “recent awareness of [the judges’] public engagements” in her letter — a reference interpreted by Biggs as a nod to union president’s testimony before Congress in late 2023.
In a letter addressed to Attorney General Merrick Garland on Friday, Grassley suggested the move was intended to quell dissent from government officials about backlogs in the immigration court system amid scrutiny of the Biden administration’s handling of the influx of migrants entering the country through Mexico.
“It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border,” Grassley wrote.
Sen. Chuck Grassley is seen during votes in the U.S. Capitol, December 5, 2023.
Tom Williams/CQ-Roll Call, Inc via Getty Images
Judge Mimi Tsankov, the president of the judges’ union and a recipient of McNulty’s email decree, has been a vocal critic of the backlog of some three million cases pending resolution in the immigration court system.
In an October 2023 interview with ABC News — prior to the Justice Department’s updated policy — Tsankov highlighted several deficiencies in the immigration court system, including a lack of resources and pressure from the department to resolve cases quickly.
Tsankov described how she and her colleagues “can be fired for failing to meet performance metrics” handed down by the Justice Department — an arrangement she said poses a “due process-denying imposition on the court.”
“We end up getting pressure that ordinarily is not the type of thing that you would see a court experience,” she said. “A judge should never feel pressure to complete a case any faster than it’s supposed to be addressed from a fairness standpoint.”
“That’s why we need to be able to push back” on the administration’s handling of immigration policy and the structure of the immigration courts, Tsankov said in the October interview.
Reached by ABC News over the weekend, Tsankov said she could not comment, citing the updated DOJ policy.
“Following receipt of an email from the Chief Immigration Judge on February 15, I’m not permitted to participate in writing or speaking engagements, including any interviews in my capacity as president of the National Association of Immigration Judges without prior supervisory approval,” she said. “So, for this reason, I need to decline this interview at this time.”
The Justice Department did not respond to a request for comment from ABC News.
In his State of the Union address last week, President Joe Biden advocated for the passage of a bipartisan immigration bill that would allow funding for 100 additional immigration judges.
The Federal Labor Relations Board during the Trump administration voted to revoke the judges’ union of their collective bargaining rights, effectively busting their union, amid scrutiny from the union of the growing backlog of cases.
But until McNulty’s February email, Tsankov continued to speak publicly — often in terms critical of the Justice Department’s oversight of the immigration courts.
Biggs, the IFPTE president, told ABC News that the policy shift is an “embarrassment” for the Biden administration and cuts against his reputation as a pro-union leader.
“Who knows better about what’s going on in the immigration courts than the frontline judges themselves?” said Biggs. “This gag order denies policymakers and the public from the valuable feedback these judges can provide.”
According to IFPTE, Tsankov recently sought permission from the department to attend a series of speaking engagements in March and April — including long-scheduled educational programs and judicial conferences — but has not yet received a response.
One of those conferences, according to IFPTE, is a First Amendment symposium at Columbia University.
In his letter to Garland, Grassley asked the Justice Department to “fully review” the updated policy to ensure that it adheres to whistleblower rights and to share details of the order with his office by March 25.
“Federal agencies cannot conceal their misconduct behind illegal nondisclosure policies and related actions,” Grassley wrote.