Contempt for Thee, Not for Me: EOIR’s Proposed Rule for Punishing Lawyers Who Say the Quiet Part Out Loud

There is something almost admirable about the Trump administration’s capacity to make parody obsolete.

After a year in which immigration adjudication has become increasingly punitive, increasingly hostile to relief, and increasingly comfortable with executive power, the Department of Justice has now proposed giving Immigration Judges the ability to initiate civil monetary penalties for “contemptuous” conduct by private lawyers, accredited representatives, respondents, and nongovernment witnesses.

Among the conduct EOIR proposes to punish is “abusive language” in court filings, including language that “impugns the integrity of the court” or “unfairly maligns the competence or impartiality” of the presiding Immigration Judge.

You truly have to admire the craftsmanship.

First, construct an immigration adjudication system housed inside the Department of Justice, staffed by judges employed by the Attorney General, with government prosecutors appearing before government adjudicators in proceedings controlled by the executive branch.

Then make that system increasingly hostile to immigrants.

Then propose fining the private lawyers who become too impolite when describing what they are watching happen.

This is not judicial independence. This is the administrative state demanding that defense counsel compliment the décor while the building is on fire.

The proposal is officially titled “Civil Money Penalty for Actions in Contempt of an Immigration Judge’s Proper Exercise of Authority.” DOJ published it on July 30, 2026. Comments are due September 28, 2026, at 11:59 p.m. Eastern Time.

Everyone who practices immigration law should read it.

Then everyone who practices immigration law should comment on it.

Preferably in language that is still free while supplies last.

EOIR Would Like You to Respect the Court. Please Do Not Ask Who Employs the Court.

There is a legitimate proposition buried beneath this mess, which is what makes the proposal more insidious rather than less.

Judges need authority to control proceedings. Lawyers should not threaten people in court. They should not scream over judges, deliberately refuse lawful orders, repeatedly fail to appear without good cause, falsify evidence, or turn hearings into professional wrestling events. Courts require order, and contempt authority is not inherently sinister.

Congress itself authorized Immigration Judges, under regulations prescribed by the Attorney General, to sanction contemptuous conduct by civil monetary penalty nearly three decades ago. EOIR therefore did not invent the underlying statutory authority last Tuesday after somebody became annoyed by an especially spicy brief.

The constitutional problem lies in how DOJ now proposes to define and wield that authority.

The proposed rule reaches “disorderly or abusive behavior or language” in and around proceedings and “abusive language in any filing.” Its examples include language that “impugns the integrity of the court” or “unfairly maligns the competence or impartiality” of an Immigration Judge.

Those phrases should make every litigator’s constitutional antenna stand straight up.

What does it mean to “impugn” the integrity of a tribunal when the lawyer’s actual legal argument is that the tribunal acted improperly?

What constitutes “unfairly” maligning an Immigration Judge’s impartiality when the issue being preserved for appellate review is actual or apparent bias?

Who determines when a forceful allegation of prejudgment becomes improper criticism?

The Immigration Judge?

Marvelous.

The government proposes to put lawyers in the position of arguing that the adjudicator was biased while simultaneously calculating whether saying so too emphatically might provoke the adjudicator into initiating a monetary sanction.

Nothing promotes fearless advocacy quite like asking counsel to perform a running First Amendment risk assessment before typing the sentence, “The Immigration Judge demonstrated bias.”

Perhaps practitioners will need a new boilerplate paragraph:

Respondent respectfully, deferentially, humbly, reverently, and with nothing but admiration for the extraordinary wisdom of this tribunal, submits that the Immigration Judge appears to have decided the case before counsel opened her mouth.

There. Professionalism restored.

“Unfairly Maligns” Is Doing an Astonishing Amount of Work

The phrase “unfairly maligns” deserves particular ridicule because it is almost comically ill-suited to a monetary-penalty regulation governing advocacy.

“Knowingly false” has meaning.

“Threatening” has meaning.

“Obstructive” has meaning.

“Repeatedly refuses to comply with a lawful order” has meaning.

Even “reckless disregard for truth” has a substantial body of law behind it.

“Unfairly maligns,” by contrast, sounds like something a Victorian headmaster says after discovering an unflattering caricature of himself in the school newspaper.

It is not difficult to understand why that kind of wording creates First Amendment concerns.

The Supreme Court has repeatedly recognized that lawyers do not surrender all First Amendment protection by joining the bar. In Gentile v. State Bar of Nevada, the Court held that Nevada’s application of an attorney-speech rule violated the First Amendment and specifically identified concerns about vagueness and selective enforcement where lawyers lacked adequate notice of what speech was prohibited. At the same time, Gentile also recognizes that attorney speech connected to ongoing proceedings may be regulated more than ordinary public speech when sufficiently important adjudicative interests are at stake. That is precisely why drafting matters. A government wishing to regulate lawyers’ speech needs standards considerably more disciplined than “do not malign us unfairly.” (Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991))

That is not a technical quibble. Vagueness becomes especially dangerous when a rule regulates criticism of the very official who can initiate the sanction.

If the dividing line between permissible advocacy and punishable contempt depends upon whether an Immigration Judge believes criticism of the Immigration Judge was “unfair,” the chilling effect is not some fanciful law-review hypothetical.

It is the obvious result.

A lawyer facing a potential personal monetary penalty may soften an accusation of bias.

She may omit it.

She may characterize an obvious due-process problem as merely “concerning.”

She may decide that preserving an argument for the court of appeals is not worth antagonizing the adjudicator who controls both her client’s case and the initiation of sanctions against her.

The speech does not need to be formally prohibited for the government to suppress it.

Sometimes all the government needs to do is make speaking expensive.

Please Enjoy the First Amendment, but Not Too Enthusiastically

The First Amendment problem here should not be overstated into the claim that lawyers possess an unlimited constitutional right to say absolutely anything in court filings.

They do not.

Courts may regulate genuine disruption. Lawyers may be sanctioned for knowingly false statements, frivolous filings, threats, obstruction, and other conduct incompatible with the administration of justice. Attorney speech receives constitutional protection, but lawyers also occupy a regulated professional role.

That makes the weakness of this proposal more embarrassing.

DOJ had every opportunity to write a narrow regulation targeting conduct that actually interferes with adjudication.

Instead, it decided to wander into the ideological swamp of whether advocacy “impugns” the court or “unfairly maligns” an Immigration Judge’s competence or impartiality.

Those are not merely conduct regulations. They implicate viewpoint and content.

A lawyer who writes, “The Immigration Judge carefully considered the evidence,” plainly has no problem.

A lawyer who writes, “The Immigration Judge repeatedly interrupted Respondent’s testimony, misstated the record, adopted DHS’s factual assertions without evidentiary support, and demonstrated prejudgment” may suddenly need to wonder whether she has crossed from zealous representation into actionable disrespect.

The distinction turns on criticism.

That should bother anyone who remembers why the First Amendment exists.

The Constitution does not protect criticism of government because government enjoys being criticized. It protects criticism because government has power.

A rule that becomes most dangerous precisely when a lawyer accuses a government adjudicator of misusing government power has managed to misunderstand the First Amendment at almost architectural depth.

And Then Comes the Punchline: Government Lawyers Are Exempt

Now we reach the part where satire gives up and goes home.

The proposed civil-money-penalty regime does not apply to federal attorneys acting in their official capacities.

DOJ acknowledges that expressly. Government lawyers appearing in Immigration Court would remain subject to their employing agencies’ disciplinary systems instead. EOIR explains that it is reluctant to create a regime in which one executive agency imposes monetary penalties on lawyers employed by another executive agency.

How touching.

The institutional modesty arrives exactly where it benefits the government.

Apparently it would be inappropriate for one component of the executive branch to impose direct monetary sanctions on another component of the executive branch.

A private immigration lawyer, however?

Get your wallet.

The result is an almost exquisitely authoritarian asymmetry.

DHS counsel and respondent’s counsel stand in the same courtroom, litigating the same case before the same Immigration Judge. Both are capable of disruptive conduct. Both are capable of disrespect. Both are capable of misrepresenting facts. Both are capable of behaving abusively. Both are lawyers.

Only one side would be personally exposed to this particular civil monetary penalty regime.

Guess which one.

The prosecutor works for the government.

The judge works for the government.

The disciplinary architecture governing the prosecutor remains inside the government.

The private lawyer challenging the government receives the special financial deterrent.

But please, tell us more about impartiality.

The Ministry of Professional Tone Has Thoughts About Your Brief

The deeper problem is that authoritarian systems rarely announce themselves by publishing a regulation titled “RULE FOR SILENCING DISSENTING LAWYERS.”

They speak instead in the soothing vocabulary of order, decorum, institutional integrity, efficiency, and professionalism.

Nobody is censoring you. We are merely maintaining respect.

Nobody is punishing criticism. We are merely sanctioning abuse.

Nobody is suppressing allegations of bias. We are merely preventing lawyers from unfairly maligning impartial adjudicators.

Nobody is asking you to shut up.

We are simply attaching a several-thousand-dollar incentive to your choice of adjectives.

That is how the language works.

The rule does not need to prohibit the sentence “this Immigration Judge was biased.” It merely needs to make the lawyer wonder whether writing it will create a second proceeding in which the lawyer herself becomes the accused.

That is enough to alter advocacy.

It is enough to make younger lawyers cautious.

It is enough to make solo practitioners calculate whether a righteous objection is worth a financial sanction.

It is enough to make lawyers representing unpopular clients less willing to accuse a government tribunal of exactly the misconduct appellate courts may later need to review.

That chilling effect is not incidental to the constitutional problem.

It is the constitutional problem.

You Cannot Demand Deference to Impartiality While Making Impartiality Dangerous to Question

There is also something profoundly unserious about a system demanding extraordinary rhetorical respect for the “impartiality” of Immigration Judges while those judges remain executive-branch employees subject to the authority of the Attorney General.

Immigration Courts are not Article III courts. Immigration Judges are attorneys appointed by the Attorney General as administrative judges within EOIR, itself a component of DOJ.

That structural fact does not establish that any individual Immigration Judge is biased. Many Immigration Judges have spent their careers trying conscientiously to adjudicate extraordinarily difficult cases inside a deeply dysfunctional system.

It does, however, make independence and impartiality legitimate subjects of public and legal scrutiny.

You cannot build an adjudicatory system inside a cabinet department and then act scandalized when lawyers discuss the institutional consequences of building an adjudicatory system inside a cabinet department.

You especially cannot make the legitimacy problem disappear by fining people who describe it impolitely.

That is not how legitimacy works.

If a judiciary wants the public to believe it is impartial, the traditional method is being demonstrably impartial.

The new proposal appears to experiment with another method: regulating the vocabulary available to people who think it is not.

There Is a Word for Government That Becomes Increasingly Hostile to Criticism of Government

People understandably argue about the word fascism. It is historically loaded, frequently abused, and often reduced in American political discourse to a sophisticated synonym for “thing I dislike.”

So let us be precise about what is objectionable here.

A government adjudicatory apparatus proposes to give its own adjudicators financial-sanction machinery over private participants. The language reaches criticism bearing directly on the competence, integrity, and impartiality of those adjudicators. Government advocates appearing opposite those private participants are exempt from the same mechanism. The resulting threat falls most heavily on the people whose professional obligation is to challenge executive power on behalf of individuals the executive branch is trying to remove.

One can debate labels.

The structure is authoritarian.

The instinct is authoritarian.

The notion that institutional authority deserves protection from harsh criticism by the people subjected to that authority is authoritarian.

And dressing the whole arrangement in the language of courtroom civility does not cleanse it. Authoritarianism with excellent table manners remains authoritarianism.

If DOJ dislikes that characterization, I have wonderful news.

Under the First Amendment, it is still allowed to dislike things.

The Rule Also Contains Actual Contempt Provisions, Which Makes the Speech Provision Even Harder to Defend

The proposal already identifies conduct that looks substantially more like traditional contempt: repeated failures to appear without good cause, repeated failure to obey filing orders, disruptive conduct, and other forms of interference with proceedings.

That is precisely why the speech language deserves scrutiny.

If the objective is to make sure Immigration Judges can run functioning courtrooms, DOJ can regulate conduct that prevents Immigration Judges from running functioning courtrooms.

If the objective includes ensuring that Immigration Judges do not have to endure severe criticism of their competence or impartiality, we have left ordinary courtroom administration and entered considerably more dangerous constitutional territory.

Judges are powerful public officials.

Criticism comes with the furniture.

Sometimes that criticism will be unfair.

Sometimes it will be overstated.

Sometimes an appellate court will decide that an allegation of bias was unsupported.

That is not the same thing as contempt.

The appropriate response to a bad legal argument is ordinarily to reject the argument.

The appropriate response to an unsupported accusation is to explain why the record does not support it.

The appropriate response to harsh but constitutionally protected criticism of government is not to create a billing schedule.

The Proposed Procedure Does Not Magically Cure the Speech Problem

DOJ does include procedural protections. An Immigration Judge generally would issue a warning before initiating the civil-money-penalty process. The Immigration Judge would then issue a notice of intent, and the proposed structure involves review by the Chief Immigration Judge and an appellate process before the BIA.

Those safeguards matter.

They do not answer the underlying question.

A beautifully administered unconstitutional speech restriction remains a speech restriction.

The existence of appellate review also offers limited psychological comfort when the appeal runs through the same executive-branch adjudicatory structure whose institutional criticism created the controversy in the first place.

One can imagine the caption already:

Matter of Lawyer Who Hurt Our Feelings.

The Board respectfully concludes that criticism of the Immigration Judge’s impartiality was unfair.

The lawyer respectfully pays $3,500.

Institutional confidence restored.

Immigration Lawyers Have an Ethical Obligation to Say Uncomfortable Things

This proposal also collides with the actual function of lawyers.

Counsel is not courtroom decorative foliage.

A lawyer representing a person facing removal has an obligation to identify legal error, preserve appellate issues, challenge unsupported governmental assertions, object to procedural unfairness, and, when the evidence warrants it, raise concerns about bias or prejudgment.

Sometimes doing that requires saying things an adjudicator would rather not hear.

“The court misunderstood the evidence.”

“The court denied a meaningful opportunity to present the claim.”

“The court applied a different evidentiary standard to DHS.”

“The court prejudged credibility.”

“The court demonstrated bias.”

Those statements are serious. Lawyers should not make them recklessly. They should ground them in the record and make them with professional discipline.

But the possibility that criticism might be wrong does not justify giving the criticized official vague monetary authority over the critic.

If anything, bias allegations require more breathing room, because the person with the power to punish the allegation is also the person whose conduct is being challenged.

That conflict should be obvious enough to fit on a bumper sticker.

Yes, You Can Comment on This. Please Do.

The proposed rule is not final.

EOIR is accepting public comments through September 28, 2026, at 11:59 p.m. Eastern Time. The docket is EOIR-2026-0100, and the rulemaking is identified as RIN 1125-AB02 / EOIR Docket No. EOIR-26-AB02.

You can submit a comment electronically through the official Regulations.gov docket.

And practitioners should not waste the opportunity by merely writing “THIS IS FASCIST BULLSHIT,” however emotionally satisfying that submission might be.

Administrative comments become part of the rulemaking record. A serious comment should identify the particular regulatory language being challenged and explain why it creates constitutional, statutory, practical, or ethical problems.

The strongest comments should address the vagueness of phrases such as “unfairly maligns”; the chilling effect on allegations of judicial bias and due-process violations; the risk of selective or viewpoint-based enforcement; the asymmetry created by excluding federal government counsel; the conflict between contempt authority and counsel’s obligation to preserve issues for review; the danger of allowing the adjudicator who is criticized to initiate sanctions against the critic; the adequacy of procedural safeguards; whether narrower alternatives could adequately address genuine courtroom obstruction; and the particular danger to solo practitioners, nonprofit lawyers, accredited representatives, and respondents who may lack resources to contest monetary sanctions.

In other words, drag them with Bluebook citations.

That is the professional way.

Respect Is Earned. Constitutional Silence Cannot Be Ordered.

The most offensive premise hiding inside this proposal is that confidence in adjudication can be protected by regulating criticism of adjudicators.

It cannot.

A tribunal earns legitimacy when it follows law, treats parties evenhandedly, creates a fair record, tolerates criticism, and explains its decisions.

A tribunal does not become more impartial because lawyers become more frightened of calling it partial.

A judge does not become more competent because the government establishes a monetary penalty for describing incompetence.

An institution does not acquire integrity by regulating the vocabulary people use to question its integrity.

That is not respect.

That is compelled deference wearing a robe.

Immigration lawyers already practice in a system in which the government writes the charging document, prosecutes the case, employs the adjudicator, controls detention, executes the removal order, and possesses vastly greater institutional resources than almost any respondent standing before the court.

The answer to that imbalance is not to give the same system a new financial weapon against the people whose job is to challenge it.

If EOIR genuinely wants courtroom order, it can punish obstruction.

If it wants accurate filings, it can punish knowingly false statements.

If it wants timely proceedings, it can address repeated unjustified failures to comply with orders.

But if it wants lawyers to stop saying that government adjudicators are biased, incompetent, or acting without integrity when the record provides a good-faith basis to say exactly that, DOJ has wandered out of courtroom administration and directly into the First Amendment.

And perhaps the most American response available is the simplest one:

With all the respect the Constitution requires, I hold this proposal in profound contempt.