The Future of Open-Dialogue in the Immigration System

The Trump Administration created Performance Quota Policies in 2018—a policy incentivizing judges to order more immigrant removals by threatening their job security—challenging the validity of the immigration system. This precedent persists in the Biden Administration as the Department of Justice (DOJ) passed directives in February 2024 restricting Immigration judges from speaking to the media, public, and congress without governmental approval. Therefore, a legal dilemma arises that questions the constitutionality of restricting the speech of immigrant judges and the implications of how this form of censorship impacts the immigrant community.

Through examining the legal ramifications of censorship in the United States’ history, legislators have employed both direct intervention and circumventive strategies to censor immigrants in the name of governmental interest. Severe examples of direct intervention are sown into immigration policy. Specifically, the Immigration Act of 1927 established immigration quotas which limited the inflow of immigrants on U.S. soil. Censorship can be in the form of suppressing news and public resources but also exclusionary legislation like regulating the amount of immigrants allowed in the country, repressing immigrants' voices by limiting their presence.

United States policy can target certain communities like in the court case United States vs Wong Kim Ark which restricted the citizenship of Chinese immigrants and more recently Johnson vs Artega Martinez which permits the government to deny detained aliens bond hearings after six months of detention. In both of these crucial court cases, immigrants' freedom of movement and expression are restricted through government discretion. Furthermore, Executive Order 8985 created the Office of Censorship, allowing the government to open, examine, and potentially censor mail from Japanese-Americans, Italian-Americans, German-Americans and other people rendered enemies of the state during WW2. This raises questions on whether First Amendment rights can be violated if people are considered dangerous and presents a paradox on whether rights are contingent on situation instead of accepted universally. The implications of this notion have granted the U.S. the power to interpret constitutionality and dictate what immigrant communities are accepted as citizens or granted these freedoms. This precedent has only been expanded through the Patriot Act, which expands governmental power in the realm of surveillance and securitization. The Patriot Act comprises ambiguous language, such as broad terms like “threat” authorizing the government with interpretive power on legal judgements through living constitutionalism coupled with minimal checks on governmental intrusion. In particular, the Patriot Act enables deportation and exclusion of immigrants when they are labeled as national security threats while simultaneously eliminating legal protection such as bonds during pending deportation proceedings and indefinite detention. This mode of censorship silences immigrant voices within legal processions.

The censorship present in the Performance Quota Policy poses constitutional concerns  with regards to the compelled speech doctrine in the First Amendment. The First Amendment in the Constitution protects Freedom of Expression and restricts the government from forcing a constituent to act or speak in a certain way. Therefore, the threat of job security in terms of issuing immigrant removal can be interpreted to violate this constitutional guarantee, censoring judges' authentic opinion. In West Virginia State Board of Education vs Barnette, the court issues that requiring children to salute the flag violates the First Amendment and specifically their Freedom of Expression. This precedent establishes the compelled speech doctrine which confirms that the government cannot force individuals to a certain form of expression. This precedent is continued in Hurley vs Irish-American Gay, Lesbian, and Bisexual Group of Boston  where citizens are able to choose the content of their speech and cannot be forced to a particular expression. In 1995, the court ruled that the private-organizers of  the parade in Boston are not forced to include certain groups that convey a message that they do not want to promote. Although Immigrant Judges are considered employees of the government, their freedom and liberties are still in violation in accordance with the compelled speech principle, as they are influenced to express judgment towards meeting the quota, instead of being impartial.

The DOJ directives passed under the Biden Administration censor the speech of Immigration Judges by suppressing their expertise in media, Congress, and the public creating a lack of legal perspective on the immigration system. Currently, the National Association of Immigration Judges (NAIJ) are unable to speak about immigration without Department of Justice approval, inhibiting public access to the current information on immigration and the accurate knowledge on developments at the border. Lawsuits from Immigration Judges call into question whether the restriction of speech is considered prior restraint and violates the 1st amendment. Through the lens of constitutionality and the 1971 precedent in New York Times Company vs United States, the prior restraint action on experts in the field is unconstitutional and does not meet the imminent and lawless action test as the information from Immigration Judges does not pose a serious threat to the government. Therefore, censorship is restraining legal experts from sharing information and proliferates a platform that spreads misinformation without the scrutiny of judges who dictate these laws. The implication of these gag orders is a biased court, that is indicative of the DOJ’s political agenda instead of Due Process under the Fifth Amendment. The New York City Bar finds that Immigration Judges have much higher asylum denial rates due to performance metrics and censorship from the government. Notably, the analysis concludes that these judges who attempt to speak up are silenced by the DOJ as unions like NAIJ must ask for approval from the DOJ before issuing public speech. To clarify, judges turn to unions for protection from their employers while they express inequalities within the workplace. Therefore, judges who attempt to report the inequalities are silenced by the DOJ and unable to share the truth. In turn, judges are desensitized from acting freely and they are forced into following performance metrics and governmental directives. The censorship present here violates the Freedom of Speech and expression doctrines in the 1st amendment and the Due Process Clause in the Fifth Amendment as immigrant judges are unable to express their authentic opinions to the outside world and are coerced into making judgment that are biased towards deportations, violating fair legal processes for immigrants. The constitutional violations are increasingly dangerous for the public as censorship on immigration policy shrouds the violations of rights regarding immigrants, permitting bias on deportations decisions which often mean life or death.

Through censoring the judgment of the court and leaving immigrants in the balance, the court system promotes discrimination for the most marginalized. In this legal examination, courts can interpret constitutionality and deny the actual meaning of laws, promoting the policy agenda of the executive. This governmental oversight spreads misinformation around the oppressive structures within the immigration system and disregards fair trials for immigrants.

With the recent 2024 election of another Trump administration, the immigration system will continue to be affected by censorship. Specifically, Trump’s Mass Deportation Plan has multiple implications for immigrants. The plan intends to abolish programs for Temporary Protected Status (TPS) and the Right to Asylum, expand capacity for detention facilities, and deport millions of immigrants. This suggests a precarious expansion in immigration enforcement, increasing censorship through governmental pressure from Trump’s political agenda. From the perspective of Lawyers and Judges, the court system will be prone to an increase in cases,  pressuring them to start the mass deportation proceedings. Regardless of whether the precedent of Quota Policies in the Trump administration continues, judges will be compelled by the administration to manufacture results. If the DOJ continues with their gag order, federal employees will not be guaranteed free speech and federal law will be violated.  Therefore, bias increases within the court, impacting the fate of immigrants in the name of achieving Trump’s mass deportation plan. The solution is multifaceted but the most urgent legal recourse is to allow for experts to express their knowledge to the public. The legal precedent in New York Times Company vs United States illustrates that Immigration Judges do not pose an imminent danger to the government; therefore, the DOJ should revoke its orders and provide Immigration Judges with freedom of speech rights to reveal injustices with union protections. The precedent in West Virginia State Board of Education vs Barnette demonstrates that compelled speech violates the First Amendment. The Trump Administration should uphold this precedent by precluding Quota Policies and performative metrics, which not only bias the courts and dismantle justice for immigrants but also violate constitutional protections. Open-dialogue within the immigration system is the legal answer, as long as people are allowed to speak.

Edited by Ananya Bhatia