On July 1, 2020, the Knight Institute filed a lawsuit challenging a policy of the Executive Office for Immigration Review that imposes an unconstitutional prior restraint on the speech of immigration judges. The policy categorically prohibits immigration judges from speaking or writing publicly in their personal capacities about immigration or about the agency that employs them. On all other topics, the policy requires immigration judges to obtain EOIR’s prior approval.
The Knight Institute represents the National Association of Immigration Judges (NAIJ), a non-partisan, non-profit voluntary association that represents all non-managerial immigration judges in the United States. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities. But in 2017, EOIR issued a speaking-engagement policy that sharply curtailed the ability of immigration judges to speak publicly in their personal capacities. A revised version of the policy, issued in 2020, is even more restrictive.
The lawsuit argues that the policy violates the First Amendment right of immigration judges to speak publicly on matters of public concern, and the First Amendment right of the public to hear them. It also argues that the policy is void for vagueness under the First and Fifth Amendments.
Status: EOIR is undertaking a full review of the agency’s speaking-engagement policy. On April 23, 2021, the government filed a consent motion to stay the appeal in light of that review. On April 26, 2021, the Fourth Circuit granted that motion and directed the parties to submit a status report in 60 days.
Case information: Nat'l Ass'n of Immigration Judges v. McHenry, No. 1:20-cv-00731 (E.D. Va.), No. 20-1868 (4th Cir.).