Game-Changing Ruling for DC Noncitizens


In mid-July, the DC Court of Appeals issued an historic decision in Bado v United States (No. 12-CM-1509, 2015 WL 4277940) that promises major changes in the types of cases that District juries will hear and provides a much needed foothold for immigration law reform advocates. The ruling in Bado establishes that going forward a DC criminal defendant has the right to demand a jury trial if the crime for which he is charged makes him eligible for deportation. This ruling flows from the court’s observation that our country’s immigration laws have removed nearly all opportunities for immigration judges to use their discretion to save deserving noncitizens from banishment.

On its face, the court’s decision means that DC jurors may soon find themselves sitting on juries listening to seemingly minor cases that in their view may not merit a jury’s attention. Thus, rather being empaneled for a case under the prior standard - where the charged offense is punishable by incarceration for more than six months - jurors may now find themselves assigned to cases where the stakes, at least on the surface, appear much lower. This was the case in Bado where the sentence faced by the defendant failed to exceed the threshold 180 days jail term which traditionally has activated the right to a jury trial. But because the charges against defendant Bado fell within the class of crimes (called “aggravated felonies” in immigration parlance ) for which a conviction nearly automatically triggers deportation under immigration law, the DC Court of Appeals recognized that the severity of the potential penalty deserved the heightened constitutional protection that jury trials provide.

The case also has significant implications in the realm of immigration law. The Bado ruling brings the fairness of our country’s immigration courts into stark relief by asking the question: if a noncitizen is eligible for a jury trial in a non-felony criminal case because of the severity of the implications on his immigration status, shouldn’t that noncitizen have the same right to a jury trial in immigration court?

Traditionally, only de minimis constitutional protections have been available to noncitizens in immigration court. Among the list of constitutional deprivations in deportation proceedings are: no right to appointed counsel; no impartial magistrate (immigration judges are employees of the Department of Justice); no right to a speedy trial; no federal rules of evidence; no statute of limitations on the various grounds of deportability; and, importantly in light of the Bado ruling, no right to a jury trial. Some commentators have likened the relaxed constitutional environment of immigration court as “trying to argue death penalty cases in traffic court.” The analogy is apt since in many deportation cases individuals who initially fled their homelands because of the risk of persecution, torture, or death are returned back to the same dangerous conditions.

Sadly, the lack of due process protections in immigration proceedings is consistent with an overall immigration policy that disproportionately penalizes the economically disadvantaged. DOJ data indicate that asylum seekers with legal representation were nearly five times more likely to be granted asylum compared to those who appeared without counsel. Looser immigration policies for rich, well-educated persons - including generous employment visa quotas for highly skilled workers and immigrant investor visas directed towards wealthy individuals with $500,000 to invest - militate against our shared collective myth of welcoming “the huddled masses.”

The Bado decision strengthens the argument that greater constitutional protections should be afforded to vulnerable noncitizens facing deportation and who risk being wrenched away from their families, homes and possibly all that makes life worth living. In the interim, DC jurors deliberating on ostensibly inconsequential misdemeanor cases may find themselves as the final bulwark against immigration proceedings that possess only the thinnest veneer of justice.

Reprinted with permission.

About The Author

Johan Fatemi, Supervising Attorney in the University of District of Columbia David A. Clarke School of Law’s Immigration & Human Rights Clinic.

The opinions expressed in this article do not necessarily reflect the opinion of