Immigration Article of the Day: It’s Time for an Immigration Jury by Daniel Morales

It’s Time for an Immigration Jury by Daniel Morales (DePaul), forthcoming in the Northwestern Law Review Colloquy

Abstract: Immigration law and policy alternates between periods of tolerance for law-breaking and heightened law enforcement. The cycles are corrosive in myriad ways. For instance, law is often made in the high-enforcement moments, but the changes tend to be permanent and they make the law more arbitrarily harsh. The high-enforcement moment passes, bad laws stay on the books, and still an undocumented population re-emerges in some form. The cycle should be broken, but breaking it requires legalizing productive unlawful immigrants on an on-going basis, rather than insuring that they are all deported, or never permitted to arrive. This is easier said than done, however. In periods of heightened concern over immigration, procedures for legalizing the unlawfully present over time are apt to be curtailed, not adopted. Scholars have noticed the pattern, but have yet to come up with a sustainable solution to ameliorate it. Here I sketch a novel solution that breaks the cycle: have a jury preside over an existing legalization remedy aimed at hard-working and otherwise law-abiding “illegal” immigrants and make the criteria that apply more permissive. A jury has the political authority and legitimacy to resist efforts to erode the procedure over time, keeping the undocumented population in check, and helping to ensure that the vicious cycle will not begin anew.

KJ