Regulating the Border

Eunice Lee

Under the current presidential 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 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 Matter of A-B- in its border screenings, known as credible fear determinations. In December 2018, a federal district court judge enjoined 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.

In this Article I will examine border adjudications within the structure of our administrative state. I will consider proper roles between and within agencies, as well as among the agencies and courts. Specifically, I will consider how the underlying aims of judicial review of agency decisionmaking should shape and guide credible fear processes. I will 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 will suggest delayed or declined implementation of restrictive Department of Justice asylum precedents at the border, as well as greater consideration of the views of the asylum office. For the courts, I will 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 decisionmaking. I will conclude with recommendations for structural and statutory reforms of agency decisionmaking at the border and beyond.