Settlement comes after judges accused president of ‘doubling down’ on Trump’s position
In a stunning victory, US immigration judges have settled a tense dispute with Joe Biden’s administration over their effort to restore union rights taken away from them under Donald Trump.
Biden’s Department of Justice agreed on Tuesday to recognize the union as the exclusive representative for the nation’s immigration judges and follow the terms of their collective bargaining agreement, at least for the time being.
Days before reaching the settlement, the head of the federal immigration judges’ union had accused the Biden administration of “doubling down” on its predecessor’s efforts to freeze out their association even as they struggle with a backlog of almost 1.5m court cases and staff shortages, which exacerbate due process concerns in their courts.
Mimi Tsankov, president of the National Association of Immigration Judges (NAIJ), had declared herself “mystified” that Biden’s Department of Justice would not negotiate with her members despite the US president vocally and frequently touting his support for workers’ representation.
“This administration has really doubled down on maintaining the [Trump] position that we are not a valid union,” Tsankov said before the settlement.
Tsankov was appointed as an immigration judge in 2006 and is based in New York, where she also teaches at Fordham University School of Law. She spoke to the Guardian only in her union role.
After what she described as “decades” of relatively smooth relations between the NAIJ and the Department of Justice, Donald Trump capped four years of rightwing immigration policy by successfully petitioning to strip hundreds of immigration judges of their right to unionize.
The hostile move was decided by the Federal Labor Relations Authority (FLRA), an independent administrative federal agency that controls labor relations between the federal government and its employees, on 2 November 2020, the day before the presidential election.
Despite a Democratic victory and Joe Biden taking the White House pledging to undo damage done by Trump, the union remained shut out and silenced for more than a year, without a date set to hear its case attempting to restore its official status.
“I cannot understand it … Working together, as the president has stated, working with federal employees, working with unions, achieves better results,” said Tsankov.
The justice department did clear the way in June for the judges’ union to at least ask for its rights back when the Executive Office for Immigration Review (EOIR) – home to the country’s immigration courts – withdrew opposition to the NAIJ’s motion for reconsideration.
However, Tsankov said the administration had still been refusing to negotiate, which led the NAIJ to accuse the EOIR of unfair labor practices.
The complaint in question accused EOIR of “interfering with, restraining and coercing employees in the exercise of their rights” to organize and “refusing to negotiate in good faith”.
She said in a phone interview last week: “Good faith, in my mind, would have said, if we really cared about this union, this administration would have started negotiating with us. But they haven’t, so we’re really mystified as to why.
“I don’t think there’s any other way to say it … They have simply doubled down on this policy, and it is counterintuitive given the positions that the president has set forth,” she said.
In a formal response to the complaint, EOIR stated that “in essence, the NAIJ is defunct”.
Administration officials went so far as to file a motion to dismiss the NAIJ’s grievances about unfair labor practices, though the motion was denied.
But on Tuesday, the administration changed its tune, agreeing to recognize the union and make other concessions in exchange for the NAIJ withdrawing its charges of unfair labor practices.
The administration will continue to recognize the union unless the FLRA denies the motion for reconsideration.
EOIR does not comment on continuing litigation.
Even with the conflict reaching a detente, the nation’s immigration courts are still tackling crushing case loads with severe shortages of vital personnel such as legal assistants and translators.
Tsankov said one of the New York immigration courts only had about 30% of the staff it needs, and other courts in cities as geographically diverse as Memphis, Salt Lake City and Philadelphia have been short-staffed for years.
The lack of personnel makes it more difficult for judges to be fully prepared for hearings and can even affect whether those in front of the courts, often including migrants at the US-Mexico border, receive adequate notice of important changes to their cases.
She suggested that shifting political priorities between administrations might have focused resources on law enforcement instead of hiring more staff to make the immigration courts run more efficiently.
“It has a very real impact on the ability of respondents who are seeking justice … to ensure that they’re receiving a fair hearing,” said Tsankov.