FLRA votes to block immigration judges union from collective bargaining

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It’s not an easy time to be an immigration judge. The case backlog is growing thanks to a surge in immigration. And now the Federal Labor Relations Authority has voted for the second time to take away collective bargaining rights from immigration judges who work for the Justice Department. For an update, the Federal Drive with Tom...

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Best listening experience is on Chrome, Firefox or Safari. Subscribe to Federal Drive’s daily audio interviews on Apple Podcasts or PodcastOne.

It’s not an easy time to be an immigration judge. The case backlog is growing thanks to a surge in immigration. And now the Federal Labor Relations Authority has voted for the second time to take away collective bargaining rights from immigration judges who work for the Justice Department. For an update, the Federal Drive with Tom Temin turned to the president of the National Association of Immigration Judges Mimi Tsankov.

Interview transcript:

Tom Temin: Ms. Tsankov, good to have you on.

Mimi Tsankov: Thank you so much.

Tom Temin: And let’s start with the FLRA. They voted just the other day that the judges should not, the immigration judges should not be part of any bargaining unit. This is a reaffirmation of a vote they made in 2020. What’s going on here? And what does it mean?

Mimi Tsankov: The decision came out late Friday evening. And so what we saw in that decision that just came out on Friday, were the two anti-union members of the Federal Labor Relations Authority issue what we view as a lawless decision, because it is ignoring the wishes of the parties. It’s basically saying that the union should be decertified, and that the regional director should act quickly in doing so but the decision itself is a poorly reasoned one from our perspective.

Tom Temin: What is the practical effect of it though, as it stands?

Mimi Tsankov: If the decision stands,and the regional director decertifies us, there would be no members within the bargaining unit.

Tom Temin: So you would just revert to being regular employees of the Justice Department as judges?

Mimi Tsankov: That’s correct, we would lose our voice, we would lose our ability to speak with you today about the concerns that plagued the immigration court.

Tom Temin: And the grounds for the original petition to decertify were that judges should be considered management employees and not regular working employees. And what is the case in your view?

Mimi Tsankov: It’s an extremely weak case. And when it was looked at in great depth by the regional director, she soundly found that that was a position that couldn’t be supported, and in a multi-page decision, rendered a conclusion that we were not management officials. The decision went up to the Federal Labor Relations Authority, but they disagreed with her and ordered her to decertify us. We filed motions to reconsider with the Federal Labor Relations Authority. And just as a Friday, some of those motions have been denied.

Tom Temin: And when you refer to the regional director, that is the regional director of –

Mimi Tsankov: Of the Federal Labor Relations Authority.

Tom Temin: I see. Just to back up for a moment how many immigration judges are there? How large a unit are you?

Mimi Tsankov: Well, by way of last count, we’re around 580 or so immigration judges serving at the roughly 70 immigration courts around the country. So while we’re not a huge group, we’re a very significant group because of the really important work that we do.

Tom Temin: And by the way, you are an active functioning judge, in addition to the union president, correct?

Mimi Tsankov: That’s correct. I’m seated at the New York Federal Plaza immigration court in lower Manhattan.

Tom Temin: Alright, and let’s get to the work right now. Because judging from what you see on television, it’s hard to discern what’s going on with immigration, but from what I understand, you’ve got a backlog growing for the immigration court system. And so give us a sense of the dimensions of that and what that means for the life, the day-to-day life of an immigration judge.

Mimi Tsankov: Tom, by last count, we are at 1.6 million cases in the backlog. And when I calculate that out, on average, it comes out to about 2,700 cases per judge. We are literally on the bench almost every day, all day hearing cases. And no matter what we do to try to address that backlog. It just keeps growing. And I have some reasons as to why I think that’s the case.

Tom Temin: And the backlog, then would – suppose the case of stop coming in just to make a theoretical calculation here – how long would it take to work through all those cases?

Mimi Tsankov: If you were to hold four trials a day and not take any vacation time and never be sick, or never have a snow day, it might take you three or four, maybe three years or so to get through that.

Tom Temin: Wow, and as a judge sitting on the bench, you see this mass of cases. Do they all look alike to you or is each one in in fact, individual?

Mimi Tsankov: Every single case has to be treated as an individual matter. In order to provide due process, we have to consider all of the facts and circumstances for the individual proceeding presented before us and apply their specific circumstances to the case law. And if we don’t do it right, if we cut corners, that case will get appealed to a higher authority and end up in a remand to us to be redone, again. So yes, we cannot adjudicate these cases on mass. They need to be given the procedural due process that our Constitution requires.

Tom Temin: We’re speaking with Mimi Tsankov. She’s an immigration judge and president of the National Association of Immigration Judges. Kind of unrelated maybe, but does your union certification, give you some leverage if you were to keep it somehow over the ability to work the cases and how you handle that backlog? Is there a connection there?

Mimi Tsankov: There’s absolutely a connection. And the connection is this: The work of the judges on the bench is a reflection of how much work they have coming in their door, and how much pressure they’re receiving from the Department of Justice managers to adjudicate those cases really quickly. So that tension directly affects how the judges are feeling, what kind of pressure they’re feeling to adjudicate those three to four trials a day. And when you think about this as a period in which judges are trying to preside during COVID, you can imagine the level of pressure that they feel.

Tom Temin: Do you also try to bargain? I mean, I guess apparently, this would have to come to Congress as an appropriation, but sounds like you need more judges.

Mimi Tsankov: We need more judges. But even more than more judges, we always need more judge teams. And by that I mean, all of the personnel that come into play to ensure that when I’m hearing a case, the hearing notices have gone out properly, that the documents that have been filed in connection with the case have been served on the court, that they are before the judge. All of those pieces have to be in play for me to be able to fairly adjudicate the case.

Tom Temin: Getting back to the issue of the status of the judges as a bargaining unit. The vote was 2-1 with the two Trump administration nominees as Republicans voting against and Ernest DuBester, the Democratic chairman, voting to not decertify the union, there is one appointee pending before the Senate, which would knock out one of the Republican members, James Abbott. So are you waiting out that process or what’s your next step here?

Mimi Tsankov: We’re absolutely going to take legal action. Within days to address what we find is, what we believe is a decision that is both poorly reasoned, not in line with this government’s pro union, pro collective bargaining stance, and we will take immediate action.

Tom Temin: And the other issue I wanted to ask you about is the content of a hearing that happened last week, with respect to what type of federal employee one way or the other that immigration judges are, and that your would like to see Congress maybe move the whole process out of the Justice Department, or Congress would like to do it. What’s going on there?

Mimi Tsankov: Tom, you’re right to bring up both. We have a short range strategy and a long range strategy. The long range is the article one solution, it is the only lasting solution that will address the concerns and what plagues the immigration court. To give you a little bit of context, the biggest problem that we see at the immigration court is the fact that we are ruled essentially by a political attorney general. And as much as we want to take the politics out of the Justice Department, there is no doubt that policy is influenced through the attorney general. And so with the attorney general, attorneys general being appointed every few years, sometimes every couple of years, they really do reflect the very different viewpoints of the presidents that they are serving. And so what we need to have is the immigration courts taken out of the Department of Justice so that we will not have that political interference deciding how immigration judges are to be adjudicating their cases.

Tom Temin: And if it did become Title I, which is a creation of Congress, a congressional agency, in effect, how would it work administratively? That is to say, how would you make sure that the judges hired are not politically biased?

Mimi Tsankov: The Congress has looked at formulations for creating these sort of these courts that we call Article One courts, and one model has been the tax court. And we’re waiting and hopeful that Rep. [Zoe] Lofgren (D-Calif.) will produce a bill that will carefully examine how you would create an independent Article One immigration court that would address precisely the types of concerns that you’re raising.

Tom Temin: And do you sense there is bipartisan support for that idea?

Mimi Tsankov: We’re very hopeful that the idea is a bipartisan, it has bipartisan appeal. It’s a good governance solution to a problem that we’ve been seeing. It is a rule of law solution that would address the burgeoning backlog. And the fact that we see wide swings in the way that immigration cases have been adjudicated from president to president. And I would also note that going back to 1981, the first notion of an Article One immigration court was proposed by a Republican.

Tom Temin: Well, let’s hope a year from now you’re in a better place on all these counts. Mimi Tsankov is an immigration judge and president of the National Association of Immigration Judges. Thanks so much for joining me.

Mimi Tsankov: Thank you so much, Tom.

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