Day 223: Jury Trials for Immigration?

Photo by Bermix Studio on Unsplash

Today in Immigration Clinic class, we focused on administrative law tools that every immigration lawyer should know. After covering some basics, we turned to the current attempt at revolution in administrative law (the threat to Chevron deference, the Appointments Clause cases and the unitary executive theory). Specifically, we contemplated how these trends might change immigration practrice.

As we talked about SEC v. Jarkesy, the case arguing that securities fraud cases have to be decided by jury trial under the Seventh Amendment, one student raised a provocative question:

If immigration cases ever had to be decided by jury trial, would citizens return more favorable decisions than immigration judges currently do?

Imagining the Immigration Jury

This triggered some animated discussion, and students expressed divergent viewpoints.

Even though politicians drum up anti-immigrant sentiment with rhetoric, one student thought, most people would probably sympathize with the plight of a particular individual.

Another student wasn’t so sure. Some people have such long-held opinions against immigration that it’s a matter of identity. They might have no trouble saying ‘sorry’ to a respondent/defendant.

A student who had worked in criminal defense said juries tend to relate more to defendants than to the government. But would juries extend the same sense of common community to people from other countries, someone else wondered.

Getting to the Immigration Jury

Of course, we agreed that Jarkesy wouldn’t give rise to a claim for immigration jury trials. The Seventh Amendment guarantees a right to a jury trial for “Suits at common law.” While the securities fraud claim at issue in Jarkesy is arguably analogous to civil fraud, it’s a stretch to imagine a common law claim akin to the sovereign power of removal. Employer sanctions, yes, but not removal.

Still, students thought this trend might gain some ground for the idea of immigration jury trials. The conservative coalition bringing cases like Jarkesy and Loper Bright argues that the government has spilled its banks with the administrative state, making laws through unelected, unaccountable entities not mentioned in the Constitution. They hope with cases like Jarkesy to push some agency adjudication to the courts.

Immigration cases have far higher stakes than securities fraud cases. The immigration judge exercises a far more awesome power than an SEC Commissioner — the power to deprive a person of their liberty (and sometimes, in effect, their life).

In a climate of distrust of agencies, it may only take a few short steps from Jarkesy to a claim that “immigration judges” (really Department of Justice personnel) should have the power to make such terrible decisions. The vehicle might be Due Process rather than the Seventh Amendment, but we could all imagine the jurisprudential evolution that could make it possible.

The dismantling of the administrative state might turn out to be the best legal development that could happen to noncitizens.