The association representing immigration judges across the country asked a federal labor authority Thursday to restore its collecting bargaining powers in its latest effort to survive a yearslong decertification fight.
The National Association of Immigration Judges, which was established in 1971 and had been a recognized union for more than four decades, filed a petition to the Federal Labor Relations Authority to be recognized as a new union.
The association was decertified three months ago when it lost its final agency appeal before a three-member FLRA panel. At the time, the panel was staffed with two Republican appointees.
But in May, President Joe Biden’s pick for the labor board, Susan Tsui Grundmann, was confirmed by the Senate, which gave the board a Democratic majority for the first time since Biden took office.
Now the immigration judges association is hoping the newly composed FLRA will come to a different conclusion about whether immigration judges, who are employed by the Justice Department, are eligible to unionize.
Mimi Tsankov, president of the NAIJ, said there is “no precedent for this that anybody is aware of.” But she argued the situation merited the novel move because the union was decertified for political reasons and not because the judges were ineligible to be in a union.
“This is an extremely unusual situation,” Tsankov said. “We were targeted because of how vocal and successful we were at pointing out challenges that the immigration courts are suffering because of the political decision-making that’s been made.”
Tsankov said the last three months without bargaining powers “had a real impact” on immigration judges. She said a number of problems have arisen that the former union would have been able to handle with the DOJ, including the distribution of laptops for remote court hearings and confusion over performance metrics for judges.
She said she hopes the Biden administration, which has vocally supported labor movements, would not oppose the petition.
The petition and effort to be certified as a new union are part of the NAIJ’s multipronged effort to revive its collective bargaining powers.
Under the Trump administration, the Justice Department filed a request to dismantle the immigration judges union, which had been a vocal critic of that administration’s immigration policies. In particular, the union had rebuked Trump-era policies imposing case quotas on judges and limiting their ability to manage their own dockets.
An FLRA official initially sided with the NAIJ. But a three-member panel for the authority, then with a Republican majority, concluded in 2020 that immigration judges were managers who were ineligible for union protections. The organization was permitted to continue bargaining as a union while appeals continued, and in December the Biden administration agreed to voluntarily recognize the group.
But earlier this year, the FLRA nonetheless doubled down on its earlier decision that the union should be busted, and the union was officially decertified in April.
While renewing its effort before the FLRA, the organization has also taken the fight to court.
The NAIJ filed an appeal in June of the FLRA’s earlier decision at the U.S. Court of Appeals for the District of Columbia Circuit, and that litigation is ongoing.
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