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March 11, 2022 Feature

The First Amendment and the Immigration Court

By Judge Samuel B. Cole

The judiciary plays a critical role in civic education and engagement. Chief Justice John Roberts explained that “[i]n our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.”1 “The judiciary has an important role to play in civic education,” he wrote. As judges, our expertise and experience give us unique insights into the strengths and flaws of the law and court system. Immigration judges take this role seriously, and for many years immigration judges were active members of the community, speaking to lawyers and nonlawyers alike about the law generally and the immigration system in particular.

Unfortunately, the U.S. immigration court system—an agency of the U.S. Department of Justice (DOJ)—does not share this commitment to civic engagement. Instead, judges are tightly managed by the DOJ, which severely limits the ability of immigration judges to speak publicly and scrutinizes what judges are saying and to whom, for all outside speaking on immigration topics.

In 2017, the DOJ imposed severe new restrictions on the ability of immigration judges to speak publicly under the first of a set of more restrictive speaking policies. These policies barred judges from speaking about immigration law or policy or the immigration court system in their personal capacities. The DOJ defined all immigration-related speaking engagements as “official capacity” speech and then repeatedly denied requests by judges to speak at bar associations, law schools, and even, in my case, to seventh graders at the local public middle school.

The DOJ denied a request by one judge to speak to law students at an immigration legal clinic about immigration court etiquette. Its rationale—as set out in an email to the judge and signed only by “The Speaking Engagement Team”—was that the judge might be “unprepared to present the Department’s official view when presented with thorny questions and topics.” The denial stressed the importance of only management officials talking about immigration publicly “in order to present a consistent, nationwide message to all Executive Office for Immigration Review stakeholders and the public.” Clearly, any statements by immigration judges contrary to the official line were unwelcome and forbidden.

Concerned with these severe limitations on the ability of immigration judges to engage in public dialogue on immigration topics, the National Association of Immigration Judges, represented by lawyers at the Knight First Amendment Institute at Columbia University, filed a lawsuit demanding that the policy be dramatically rewritten.2

A few months ago, the DOJ released a revised policy. Acting without any input from the judges’ union, the new policy continues the bar on immigration judges speaking in their personal capacities about immigration. Instead, the content of the speech must be precleared by layers of immigration court management.

The DOJ would be well served by learning a lesson from its last battle over free speech with an immigration judge. In 2012, Immigration Judge A. Ashley Tabaddor was barred from hearing immigration cases involving Iranian citizens after she had accepted a White House invitation to attend a “Roundtable of Iranian-American Community Leaders.” Judge Tabaddor, herself an Iranian-American, had sought and received DOJ permission to attend the event but was then ordered to recuse herself from presiding over all cases involving Iranians. The DOJ offered the twisted rationale that there was somehow an appearance of bias because she was a “prominent advocate for the Iranian-American community.” Of course, that argument has no outside bound and could presumably be used to bar anyone active in their ethnic or religious community from presiding over cases from that group.

Eventually, Judge Tabaddor brought suit in federal district court alleging violations of her First Amendment rights and employment discrimination under Title VII of the Civil Rights Act.3 The DOJ settled the suit a year later, reversing the recusal order and paying Judge Tabaddor’s law firm, Cooley LLP, almost $200,000 in attorney fees, plus damages to Judge Tabaddor. The DOJ also agreed to review its recusal policies.

Promoting judges’ civic engagement is an important part of a healthy judiciary. “I ask my judicial colleagues to continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach,” wrote Justice Roberts in the 2019 Report.4 Just not, apparently, for an immigration court buried in the Department of Justice.

The views expressed here do not necessarily represent the official position of the U.S. Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.


1. 2019 Year-End Report on the Federal Judiciary, at 2.

2. Nat’l Ass’n of Immigration Judges v. McHenry, No. 1:20-cv-00731 (E.D. Va.).

3. Tabaddor v. Holder, No. 14-cv-06309-GW-CW (C.D. Cal.).

4. 2019 Year-End Report, supra note 1, at 4.

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By Judge Samuel B. Cole

Judge Samuel B. Cole graduated from Harvard Law School in 1998 and then clerked for the Hon. Charles P. Kocoras of the United States District Court for the Northern District of Illinois. He served as an assistant United States attorney in Chicago from 2003–2016 before being appointed as an immigration judge in Chicago in 2016. He was elected the executive vice president of the National Association of Immigration Judges in 2021.