Original Date AnnouncedJanuary 17, 2020
The EOIR Director updates a September 1, 2017 memo curtailing the ability of immigration judges to speak publicly. That memo eliminated the speaking category of "personal capacity with use of title," thereby leaving immigration judges with the ability to speak only in strictly official and strictly personal capacities. The 2017 memo also required all speaking engagements to be approved by a supervising ACIJ and prohibited any discussion of "immigration issues" in a personal capacity. Any talking points and written materials for official public speaking would have to be submitted in advance and cleared.
Though couched as a process update to the prior directive, the new policy memo reinforces prior restrictions and expands front-office oversight of public speaking. Under the new memo, requests to speak publicly must be accompanied by "complete talking points," as opposed to an outline, overview, or "abbreviated" talking points. Additionally, all requests to speak publicly, including those in a personal capacity, must be cleared by the "Speaking Engagement Team," consisting of the Office of the Director, the Office of Policy, and the Office of General Counsel.
[ID #1140]Submission for Processing of Requests for Speaking Engagements
Effective DateJanuary 17, 2020
Subsequent Trump-Era and Court Action(s)
September 1, 2020
Immigration Judges v. DOJ - Complaint
A union of immigration judges (NAIJ) filed a federal lawsuit in 2020 claiming Justice Department rules prohibiting them from speaking in their personal capacities about their work and other immigration issues are unconstitutional. The district court denied their motion for a preliminary injunction on jurisdictional grounds; NAIJ appealed to the Fourth Circuit. See NAIJ v. McHenry, 20-cv-731 (E.D. Va.); 20-1868 (4th Cir.).
On June 8, 2022, the Fourth Circuit ruled that "[i]n light of the Revocation of Certification issued on April 15, 2022, by the Regional Director of the Federal Labor Relations Authority, we grant the motion for rehearing, vacate the district court’s order of August 6, 2020, and remand for further proceedings as appropriate." The Fourth Circuit's prior unpublished decision had concluded that "[u]ntil the Regional Director complies with the FLRA’s order or the FLRA itself decertifies the Union, we conclude that the Union must proceed through the administrative process provided by the Federal Service Labor-Management Relations Statute."
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**View Document
October 21, 2021
EOIR memo on NAIJ 'Muzzling' Suit
On October 21, 2021, the Biden administration replaced the Trump administration's policy that had forbidden immigration judges from sharing their personal views on immigration and required them to go through a four-level process to get permission to speak publicly. Under the Biden administration's new process, if an immigration judge is invited to participate in an event in their official capacity, they must seek and obtain approval from their supervisors, who are "encouraged to grant appropriate requests." The policy also eliminated the requirement that immigration judges obtain approval for speaking in their personal capacity.
A year later, on October 7, 2022, the Director of the Executive Office of Immigration Review (EOIR) asked a Virginia federal judge to dismiss NAIJ's suit. In the memorandum he filed in support of his motion to dismiss, the Director argued that NAIJ failed to state a claim and lacked standing, based on any injury-in-fact resulting from the 2021 policy.View Document