Our immigration courts are broken. A jury trial option could give asylum seekers a fair chance

At 15, Willian made the decision to escape El Salvador. Growing up in a neighborhood controlled by the MS-13, he put himself and his family at risk when he refused to join the violent street gang.

El Salvador has one of the highest murder rates in the world. Many of the victims of the violence are children like Willian, caught in the crossfire of a seemingly endless war between gangs and police.

One evening, masked soldiers grabbed Willian and took him into an alley, where they began beating him. They told him they would “disappear” him, wrongly believing him to be a gang member. A group of people assembled and protested. The soldiers stopped and left, but they told Willian his day would come soon. Willian knew he wouldn’t survive much longer in El Salvador.

So, just like most of our ancestors, Willian decided to flee his birthplace and come to the United States in search of freedom, safety and prosperity. He heard that the U.S. accepted some asylum seekers. He believed that, once he arrived here, the legal system would give him a fair opportunity to make his case in a courtroom before a neutral judge. He was mistaken.

Willian found himself before an immigration judge recently appointed by President Trump. Before his appointment, this judge had spent years working to prosecute immigrants as an attorney for Immigration and Customs Enforcement. Willian didn’t have a chance. He lost his case and was ordered deported back to El Salvador. His life remains in jeopardy.

Our country’s immigration courts are broken. They are run out of the U.S. attorney general’s office, which also enforces Trump’s brutal family separation and deportation policies. Immigration judges work at the behest of the attorney general.

President Trump has taken unprecedented steps to convert immigration courts into deportation assembly lines. He has installed anti-immigrant judges, incentivized adverse rulings, re-interpreted long-standing rules – all of which make it extremely difficult for immigrants to receive a fair trial when seeking asylum, and leading some fair-minded judges to quit because of the pressure.

The arbitrariness of the outcomes in immigration court is shocking: Some immigration judges deny 98 percent of their cases, while others grant 90 percent.

Objective observers have demanded reform. The American Bar Association recommended last year that the immigration courts be removed from the oversight of the Attorney General. The head of the National Association of Immigration Judges, Ashley Tabbador, stated that “the only durable solution is to get the court away from the Justice Department. Let it be a real court. Let it be real judges, so that we can do what we’re supposed to do.”

I agree with these ideas. But there is another solution that has yet been proposed: the option of a jury trial in deportation proceedings.

The Founding Fathers knew the importance of trial-by-jury to a country founded on the principle of liberty. The Sixth Amendment gives the right to a trial “by an impartial jury of the State and District wherein the crime was committed.” Thomas Jefferson wrote “I consider trial by jury as the only anchor ever yet imagined my man by which a government can be held to the principles of its constitution.”

In today’s immigration courts, individuals face permanent banishment from the country, separation from family and community and the risk of torture or death if deported. If a person accused of shoplifting or trespass has a right to a jury trial, why shouldn’t a person facing deportation – an outcome with far higher stakes – have the same right?

A right to a jury trial would not correct all injustices within the immigration court system. Juries have flaws and biases. Only citizens are eligible to serve. Juries often lack racial diversity and, typically, only those with financial means can participate. There is a backlog of cases, and juries would present administrative challenges. Nevertheless, the right to a jury trial – rather than a trial before a judge who has normalized the separation of families by deportation – would provide an immigrant with a legitimate chance of fairness in his or her case.

A jury trial right could be implemented through an act of Congress, or even through the agency rulemaking process. If President Trump has proven anything in the last three years, it is that the executive branch has power to make radical and systemic changes without congressional approval.

Those who would oppose a jury trial right, namely Trump officials and Congressional Republicans, are the same people who claim a popular mandate to fulfill Trump’s agenda of closing the border and mass deportation. Their deepest fear is that their own constituents would defy their aspirations for mass deportation and see immigrants as fellow human beings who should have a right to remain in their communities.

It’s too late for Willian, but it’s not too late for other immigrants asylum seekers. We are both a country of immigrants and a country founded on the principle of a fair trial. By ensuring the option of a jury trial in deportation cases, we can take the fate of immigrants out of the hands of partisan judges and restore moral authority to our court system.

This story was originally published February 29, 2020 at 5:00 AM.