Jun 03 2024

Judicial review of DHS “discretion” over travelers

The 9th Circuit Court of Appeals has upheld the right  of a traveler to have a Federal court review decisions by US Customs and Border Protection (CBP) to admit or remove an individual from the SENTRI program, one of the Trusted Traveler Programs administered by CBP and the Transportation Security Administration (TSA).

If an individual is accepted by the CBP into the SENTRI program or one of the other “less-mistrusted traveler” programs, they might be subjected to less intrusive search, interrogation, or delay when they travel. Or they might not. There’s no guarantee of better treatment, even for “members” of these programs. But that’s what applicants hope for.

Jacobo Jajati paid a nonrefundable application fee, provided additional personal information to CBP, and was accepted into the SENTRI program. Some years afterward, the same day his estranged ex-wife was arrested for crossing the US border with prohibited drugs,  CBP notified Mr. Jajati that his SENTRI membership had been revoked. Later he was told that it had been reinstated, then that it had been revoked again — all without ever telling him the basis for the original decision or any of the reversals.

That sounds arbitrary and a violation of Mr. Jajati’s Constitutional right to due process.Mr Jajati is still able to cross the US border, but without the possibility of more favorable treatment as a SENTRI program member.

Mr. Jajati suspects, reasonably enough, that CBP’s decisions had something to do with the actions of his estranged ex-wife. That sounds to us like a further violation of Mr. Jajati’s right to be judged for his own actions, not by “guilt by association” for the actions of someone from whom he had severed all legal relationship and was no longer associated.

Mr. Jajati sued, arguing that CBP’s decisions were arbitrary and violated the Administrative Procedure Act (APA).  Rather than explaining or defending its decisions, CBP argued that Congress has given it unlimited, standardless discretion to make such decisions without needing to follow any rules or give any explanation to affected individuals or to the courts.

This response by CBP is typical of the persistent, sweeping claims of the Department of Homeland Security (DHS) and all its components — CBP, TSA, etc. — to impunity from judicial review, especially with respect to decisions about  who to allow to exercise their right to travel, who not to allow to travel, and how to treat them when they travel.

We are pleased that the majority of the 9th Circuit panel rejected this argument. Even if Congress had granted CBP some degree of administrative discretion, the Court of Appeals found that Congress had given CBP sufficiently clear guidance to enable judges to review whether the agency had acted arbitrarily or abused its discretion.

The ruling by the Court of Appeals returns the lawsuit to the U.S. District Court in San Diego to review whether CBP’s decisions were made in accordance with the APA and the criteria in the law that authorizes SENTRI and other “Trusted Traveler” programs.

While the Court of Appeals reached the right decision and set a positive precedent in this case, the ruling is limited in scope. In particular, the court relied on the criteria in the law authorizing “Trusted Traveler” programs. Mr. Jajati didn’t raise, and the court didn’t address, whether it would be either unconstitutional or a violation  of the APA  for CBP or other DHS components to make unexplained decisions on other matters — such as who to allow to exercise their right to travel by common carrier — for which Congress has established no criteria at all.

If there are no rules, is that Constitutional, and can a court review whether a Federal agency followed the rules? Those issues still need to be addressed by Congress and in future lawsuits.

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  1. Pingback: Had Your Global Entry Taken Away? Court Says DHS Decisions Now Subject To Review [Roundup] - View from the Wing

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