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Immigration judges and recent gag order: Does it run afoul of whistleblower laws?

On Behalf of | Apr 22, 2024 | Whistleblower Protection

Federal employees are the eyes and ears on the ground, often the first to recognize illegal, wasteful, or fraudulent activities. Providing this group of workers with whistleblower protections is important because it encourages federal workers to report misconduct without fear of reprisal. This works to better ensure federal agencies fulfill their role while also helping to maintain public trust in governmental institutions — and the system often works. Federal employees have utilized whistleblower laws to bring to light various issues, resulting in corrective actions and reforms. For instance, in 2013, disclosures by a whistleblower from the Department of Veterans Affairs led to significant revelations about systemic delays in patient care. These disclosures eventually prompted nationwide policy changes and increased oversight.

With these benefits, it may seem surprising that officials would take a step to claw back these protections. Unfortunately, a recent government notice to immigration judges did just that.

Did government officials try to take away whistleblower protections from federal workers?

A recent notice sent by the Department of Justice’s Executive Office of Immigration Review to immigration judges states the judges cannot speak publicly without prior approval, limiting communication between the judges and the press as well as Congress. Critics argued the move stifled the judge’s ability to do their jobs and posed a significant hurdle to the application of whistleblower protections.

The notice is one in a line of recent obstacles for immigration judges. In 2020, the Federal Labor Relations Authority voted to remove the National Association of Immigration Judges’ (NAIJ) recognition as a union. NAIJ has fought the move, even taking it to court, but has yet to succeed in its efforts towards reinstatement as a union.

What protections are available to immigration judges that wish to report wrongdoing?

The DOJ took note and recently revised the policy to better ensure it does not run afoul of whistleblower law, adding language to clarify that in certain situations judges can make disclosures to Congress, inspectors general, or counsel. Pressure is mounting for the DOJ’s Executive Office of Immigration Review to repeal or amend the policy, but Acting Director Mary Cheng has yet to take such action.

Federal employees like immigration judges serve as a critical line of defense against corruption within the government. Those who find themselves navigating similar issues are wise to seek legal counsel if they believe they are the victim of illegal retaliation after reporting wrongdoing.

The release of the notice and the decision to make revisions serves as a reminder of the evolving and complex nature of this area of law. Whistleblower laws continue to exist and serve to empower these individuals to perform their duties with the confidence that they are protected. Such protections are not just about individual security; they are about preserving the integrity and effectiveness of the federal government for all citizens.


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