It's Time for an Immigration Jury
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 a new strategy. Rather than ensure that unlawfully present migrants are all deported, never permitted to arrive, or eventually legalized en masse, we need a robust and individualized method to legalize productive unlawful immigrants on an ongoing basis. If comprehensive immigration reform is to be lasting, values like earned citizenship and forgiveness — not just enforcement — must be institutionalized.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.
Daniel I . Morales, It's Time for an Immigration Jury, 108 Nw. U. L. Rev. Colloquy 36 (2013).