Thursday, February 2, 2012
Sometimes you can’t choose your messenger. In 2010 I went on the job market with a draft entitled Citizen Participation in Immigration Adjudication: Theory and Practice; in it I propose that citizens make the hardship determination in cancellation of removal proceedings. Citizen involvement is a good idea, I argue, because having citizens hear a migrant’s story and then look that migrant in the eye and impose deportation, or bestow the grace of relief, would provide citizens with a visceral sense of the consequences of our immigration laws. If you think, as I do, that having citizens understand in their bones the violence of deportation is a predicate to its legitimacy, then you’ll like my proposal. If you think that immigration legislation often turns out badly because citizens form their views based on abstractions rather than experience, reflection, or study, then you’ll also like my proposal. There’s no better way to create a more informed immigration discourse than to have citizens encounter the concreteness of a potential deportee who they have the power to save.
Kudos, then, to Gingrich for intuiting that citizens ought to get involved in immigration adjudication in some real way. But, as ever, the devil’s in the details. From the few specifics about the policy that are publicly available, it seems that Gingrich envisions an entirely citizen-based review panel organized by the Department of Justice that would assess the strength of an undocumented person’s communities ties and ability to support herself. It appears that a single committee of citizens would review all the applications within a given community and vote up or down based on criteria set by Congress. Such a system would not confer the democratic benefits I described in my paper. Better to funnel citizens into a jury or jury-like system where members would rotate through after a few cases. That way more citizens would receive the educational benefits that I think are so important, and we wouldn’t have to be concerned about citizen participants becoming inured to immigrants’ stories after reading many hundreds of them. It’s also crucial that a judicial officer play a role. Among other benefits having a judge around telegraphs the seriousness of the proceedings and can protect against unlawful discrimination. There are many other nits to pick with Newt’s proposal; still, I appreciate the impulse. Gingrich seems to recognize that having citizens do this kind of work will make our immigration discourse and policy more sane. I definitely agree with that.
Daniel Morales is an Assistant Professor of Law at DePaul College of Law.