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Original Date Announced
January 17, 2020The EOIR Director updated a Sept. 1, 2017 memo curtailing immigration judges' authority to speak publicly. The 2017 memo eliminated the speaking category of "personal capacity with use of title," thereby leaving immigration judges with only strictly official and strictly personal capacities. The 2017 memo also required all speaking engagements to be approved by a supervising Assistant Chief Immigration Judge (ACIJ) and prohibited any discussion of "immigration issues" in a personal capacity. Talking points and written materials for official public speaking were required to be submitted in advance and cleared.
Though couched as a process update to a prior directive, the new policy memo reinforces these 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. 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 EngagementsEffective Date
January 17, 2020Subsequent Trump-Era and Court Action(s)
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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 The Fourth Circuit's prior unpublished decision had concluded that "[u]ntil the Regional Director complies with the FLRA’s order or the FLRA itself decertifies the Union, we conclude that the Union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.**
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October 21, 2021
EOIR memo on NAIJ 'Muzzling' Suit
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.
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Biden Administration Action: Modified
October 12, 20212021.10.12 EOIR Revised Speaking Engagement Policy (October 2021)
On October 12, 2021, EOIR issued a revised speaking-engagement policy which replaced the Trump administration's policy forbidding immigration judges from sharing their personal views. Under the Biden administration's new process, they must seek and obtain approval from their supervisors, who are "encouraged to grant appropriate requests," to engage in public speaking at organized events. The policy also eliminated the requirement that immigration judges obtain approval for speaking in their personal capacity.
View DocumentCurrent Status
Partially in effectMost Recent Action
October 12, 2021 Action: Modified 2021.10.12 EOIR Revised Speaking Engagement Policy (October 2021)October 12, 2021Acted on by Biden Administration
Original Trump Policy Status
Status: Final/ActualTrump Administration Action: Agency DirectiveSubject Matter: Hearings and AdjudicationsAssociated or Derivative Policies
- November 2, 2020 IJ union decertified
- November 3, 2020 EOIR rule expands Director's authority over BIA and expands authority of EOIR Office of Policy
Pre Trump-Era Policies
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September 1, 2017
2017 EOIR policy memorandum established procedure by which immigration judges are required to request approval for public speaking engagements.
Speaking Engagement Policy for EOIR Employees
Commentary
DOJ issues 'gag order' on immigration judges
Various news sources, including the Government Executive, reported that on February 15, 2024, Chief Immigration Judge Sheila McNulty sent an email to representatives of the National Association of Immigration Judges advising them that immigration judges were to follow the same policies as other EOIR employees, requiring them to obtain supervisor approval in order to "participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).” Judge McNulty referenced the Federal Labor Relations Authority decision (issued in 2020 and reaffirmed in 2022) which eliminated the union's collective bargaining power, alleging that "any bargaining agreement related to [speaking engagements] that may have existed previously is not valid at present."
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