As the coronavirus spreads across the United States, much of the nation is attempting to limit the pandemic’s reach. Schools are shuttering, businesses are telling workers to stay home, and federal judges are restricting entry to the courthouse for high-risk individuals. On Monday, immigration judges tried to do their part by putting up CDC posters that explained how to identify symptoms of the coronavirus and stop its spread. But the Trump administration promptly ordered these signs taken down, asserting that judges had no authority to place advisories in their courts without permission.
Hours after the National Association of Immigration Judges revealed this directive, the government reversed course, announcing that it would let the signs stay up. While the administration quickly walked back this particular gag on immigration judges, however, Trump’s Department of Justice has been quietly muzzling these judges for years. It has relentlessly sought to transform them into cogs in the president’s deportation machine.
The coronavirus poster controversy is a microcosm of the DOJ’s hostile attitude toward immigration judges, who are appointed by the attorney general to adjudicate immigration matters, including asylum and removal proceedings. On Monday, the judges’ union, the National Association of Immigration Judges, sent a letter with guidance on dealing with the coronavirus. Among other recommendations, the NAIJ suggested that judges put up two posters prepared by the Centers for Disease Control and Prevention, “COVID-19 Symptoms” and “Stop the Spread of Germs,” in both Spanish and English versions. A few hours later, Christopher A. Santoro, acting chief immigration judge, sent the following email:
Earlier today the NAIJ sent a message to immigration judges suggesting that they post a CDC-generated coronavirus precaution flyer in public areas of the courts, to include doors to courtrooms. This is just a reminder that immigration judges do not have the authority to post, or ask you to post, signage for their individual courtrooms or the waiting areas. Per our leadership, the CDC flyer is not authorized for posting in the immigration courts. If you see one (attached), please remove it. Thank you.
The key word in Santoro’s email was “authority.” He declared that immigration judges “do not have the authority to post” signs in “their individual courtrooms or the waiting areas.” A federal district court judge would have unquestioned power to post public health warnings in a courthouse. But immigration courts do not function like typical federal courts. They are not independent from the political branches, but are part of the executive branch, overseen by the Executive Office for Immigration Review. That office is located within the Department of Justice. Former Attorney General Jeff Sessions appointed EOIR’s current director, James McHenry. When Santoro noted that “our leadership” ordered the CDC posters taken down, he was likely referring to McHenry. (The DOJ did not return my request for comment.)
After NAIJ publicized Santoro’s letter, the Department of Justice backtracked. A DOJ spokesperson told CNN that these signs “should not have been taken down. The matter is being rectified.” Then, on Tuesday morning, Santoro sent another email completely reversing his previous demand and asking them to put up information about the coronavirus. He attached several approved CDC flyers—including the very same “Stop the Spread of Germs” advisory that NAIJ sent out the day before.
The initial ban on CDC posters lined up with the president’s dangerously dismissive response to the coronavirus. Trump has referred to the virus as a “hoax” and botched the government’s early response through negligence and disorganization. His administration still hasn’t produced nearly enough tests for the country, potentially exacerbating community spread. And he has misleadingly compared coronavirus to the flu in an apparent effort to downplay its seriousness.
Much like Trump will not let CDC officials speak about the coronavirus without his administration’s approval, his deputies have barred immigration judges from speaking about their work in public. As the Trump administration ramps up deportations and detains or turns away record numbers of asylum-seekers, the Justice Department has dramatically abridged immigration judges’ free speech. Judges must obtain approval from their superiors before speaking to the public in a personal capacity about any topic relating to immigration law. As Cristian Farias explained in the Atlantic, these requests must go through the judge’s supervisor, then three different offices within the agency. (Farias is a writer in residence at the Knight First Amendment Institute at Columbia University, which sent a letter challenging the memo.) This prior restraint applies not only to speeches and panels but also to “written pieces intended for publication in any print or online media” as well as presentations to law school students.
Immigration judges are trapped in a gray area, tasked with enforcing the law impartially yet controlled by political appointees. Attorney General William Barr has authority to overrule their decisions. So does McHenry, the EOIR director (who is not even Senate-confirmed), under a rule put in place by Barr’s Justice Department. Barr has repeatedly intervened to overrule decisions that don’t align with administration policy.
Trump’s attorneys general have consistently treated immigration judges like law enforcement officers rather than neutral arbiters of the law. The administration has made life miserable for these judges unless they deport as many people as quickly as possible. It has subjected immigration judges to a quota system that forces them to decide cases hastily or risk termination. It has revoked their long-standing authority to close cases temporarily without issuing a final decision. It has shuffled them around the country, dramatically increasing their already backlogged caseloads. All the while, Trump has implemented draconian policies strictly limiting asylum claims and forcing asylum-seekers out of the U.S.
Barr has appointed partisan immigration judges friendly to the administration’s policies while punishing those judges who question his hard-line approach. In 2019, the Justice Department took the shocking step of trying to bust the NAIJ, which would deprive judges of a union. It is difficult to see this move as anything other than retaliation for the NAIJ’s objections to Barr’s agenda.
The administration’s directive to remove CDC posters—even though migrants are especially vulnerable to the coronavirus due to Trump’s policies—was an extreme manifestation of this antagonism. The point is to make these judges feel powerless, not just in their official duties but in their efforts to run a safe and efficient courthouse. The administration may have retreated in the face of public outcry, but the impact will linger. How, after all, could these judges feel they have authority to spare an asylum-seeker from deportation when they can’t even post public health warnings during a burgeoning pandemic?