A regional director with the Federal Labor Relations Authority turned down an effort by the Justice Department to decertify a union of immigration judges, a win for the judges in a series of battles with the DOJ.

The Executive Office for Immigration Review, which oversees the immigration courts, filed a petition with FLRA last year seeking to decertify the National Association of Immigration Judges. They argued the judges could now be considered management since the last time the union was considered in 2000—an assertion the judges rejected.

In a decision released Friday, Regional Director Jessica Bartlett sided with the judges in determining DOJ officials "failed to establish" the prior ruling finding the judges are not management no longer applies. She noted EOIR Director James McHenry "acknowledged that the agency's change arguments 'are based on legal changes more so than factual changes,'" and that "petitioners witnesses were unable to point to day-to-day changes in IJ work."

Immigration judges, unlike Article III judges, are housed within the Justice Department. As Trump officials crack down on immigration, the judges' union publicly butted heads with the administration. Some, including NAIJ president Ashley Tabaddor, have also called for immigration courts to be housed independently from the DOJ.

Bartlett did say the change in legal authorities for immigration judges did create enough of a difference in the status of the DOJ employees for her to make a ruling on the merits of the case.

She ultimately found immigration judges are not management officials, noting they "exercise none of the traditional management indicia." Bartlett also said their decisions are typically subject to the Board of Immigration Appeals and don't set precedent, and the judges are not involved in creating or setting policies at the department.

And she found the "deference granted to IJs factual findings" during immigration court proceedings "do not turn judges into management officials."

"At the heart of the agency's contention is that the IJs, through their decisions, create or modify immigration policy so as to warrant the conclusion that they are management officials. That theory is inapposite to what the record establishes the IJs actually do," the opinion reads. "IJs act as judges, gathering facts from witnesses and documents, and applying those facts to existing laws, regulations and precedential BIA decisions. By following the law, regulations and precedential IJ decisions, the judges implement immigration policies, they do not create or influence EOIR policies."

Bartlett said that since the last time the management status of immigration judges was reviewed in 2000, "several factors diminished the IJs' roles, including a reduction in their ability to establish court rules."

"While not dispositive, it is also noteworthy that the agency even recently started declining to send the IJs out to speak publicly, based on its assertion that the IJs are not management representatives," she added.

Latham & Watkins partners Margaret Tough and Steve Bauer, joined by associate Abigail Parr, worked alongside attorney Richard Bialczak to argue against the DOJ petition during two days of hearings held in January.

EOIR has until Sept. 29 to petition the FLRA to review the decision.

The ruling came hours after attorneys for the union and EOIR argued against each other in a federal lawsuit over the speech of immigration judges.

The union sued EOIR earlier this month, challenging the constitutionality of a policy requiring any public remarks by judges in their personal capacity be subject to agency review and approval. The Knight First Amendment Institute and Virginia attorney Victor Glasberg filed the complaint in the Eastern District of Virginia on behalf of the union.

U.S. District Judge Liam O'Grady of the Eastern District of Virginia heard arguments Friday on whether to issue a preliminary injunction against the policy. DOJ attorney Kevin Hancock argued EOIR had a right to determine whether comments made by immigration judges were in the agency's interests, while Ramya Krishnan of the Knight First Amendment Institute described the policy as an unconstitutional prior restraint on the judges' speech.

O'Grady closed out Friday's arguments by saying he hoped to issue an opinion by next week. "It is a significant issue and I think the immigration judges have properly brought before the court their concerns," he said. "I'm not involved in the bargaining power between the EOIR and the NAIJ, certainly there has been a history of negotiations. And regardless of how this lawsuit turns out, I would hope that those conversations, whether under the CBA or under other provisions in existence, that the parties will continue to address this very important issue."