Regulating the Border
65 Pages Posted: 10 Aug 2019 Last revised: 1 Oct 2020
Date Written: 2019
Under the current Administration, asylum seekers at our southern border have prompted enormous political controversy. Amidst a record-breaking government shutdown, the separation of asylum-seeker families, the declaration of a national emergency, and other drastic actions, agency adjudicators at the border have continued their daily work of screening asylum applicants. This process was not, however, untouched by the ongoing politicization of the border. Rather, in June 2018, then-Attorney General Jefferson Sessions issued a restrictive precedent decision, Matter of A-B-, targeting domestic violence asylum claims. The Department of Homeland Security (DHS) rushed to implement A-B- in its border screenings, i.e., credible fear determinations. In December 2018, a federal district court judge enjoined as unlawful several aspects of that decision and its implementation in credible fear processes. In the interim, however, DHS likely refouled refugees at the border as a result of the Attorney General’s asylum interpretations.
My article examines these border adjudications within the structure of our administrative state. I consider proper roles between and within agencies, as well as among the three branches of our government. Specifically, I consider how the underlying aims of judicial review of agency decision-making should shape and guide credible fear processes. I argue that revised agency practices and recalibrated judicial review can help ensure fair screenings: ones that abide by statutory design and thereby help avoid refoulement of refugees. For the agencies, I suggest delayed or declined implementation of restrictive DOJ asylum precedents at the border, as well as greater consideration of the views of the asylum office. For the courts, I propose stronger assertion of Article III primacy in declaring “what the law is” for screening purposes, as well as a recalibration of judicial review to favor agency expertise over politicized decision-making. I conclude with recommendations for structural and statutory reforms of agency decision-making at the border and beyond.
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