n August 2019, DOJ petitioned the Federal Labor Relations Authority (FLRA) to strip immigration judges of their right to unionize, claiming that the National Association of Immigration Judges (NAIJ) is no longer a valid union. On Friday, July 31, 2020, the FLRA issued a decision rejecting DOJ’s petition to decertify NAIJ.
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Last week, Syracuse University published findings that millions of records are missing from public reports, and that the objective data does not match DOJ reports. These inconsistencies include incorrectly formatted documents leading to unreadable data and millions of records disappearing between the EOIR’s own record releases. The immigration judges union supported the university’s claims, saying that the records do conflict with their experiences.
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Last Friday, DOJ petitioned the Federal Labor Relations Authority (FLRA) in an effort to strip immigration judges of their right to be represented by a union. AILA Executive Director Benjamin Johnson called the petition “an effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority.” House Judiciary Committee Chair Jerrold Nadler (D-NY) and Subcommittee on Immigration and Citizenship Chair Zoe Lofgren (D-CA) criticized the administration’s move to decertify the National Association of Immigration Judges, announcing plans to hold hearings to “develop a foundation for legislation to create an independent immigration court.”
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In a precedent decision issued today, the BIA held that IJs lack the authority to adjudicate a request for a waiver of inadmissibility under INA §212(d)(3)(A)(ii) by a petitioner for U nonimmigrant status. The BIA also concluded that the Seventh Circuit’s decision in L.D.G. v. Holder did not expressly find the language of §212(d)(3)(A) to be unambiguous, which would have left no room for agency discretion. Accordingly, the BIA will apply its ruling in this decision to cases nationwide, including cases arising in the Seventh Circuit.
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The Seventh Circuit denied the petition for review, holding that the petitioner was afforded due process, because the IJ fully complied with the statutory requirement of INA §240(b)(4) by informing the petitioner of his right to obtain counsel, and offered repeatedly to continue the case to allow him to secure representation.
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NPR reports that DOJ has agreed to lift an order recusing Los Angeles-based Immigration Judge Ashley Tabaddor from all cases involving Iranian nationals. Last year, Judge Tabaddor sued DOJ, claiming that the order amounted to discrimination and violated her constitutional rights. DOJ also agreed to pay Judge Tabaddor $200,000, and to review its recusal policies.
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In a precedent decision issued today, the BIA found that neither the government nor the respondent bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge (IJ) should determine if a preponderance of the evidence establishes that the respondent is competent. Further, the BIA held that an IJ’s finding of competency is a finding of fact that the BIA can review to determine if it is clearly erroneous.
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