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-Editorial
In a historic decision that will benefit border crossers in the U.S.-Mexico Border, the Ninth Circuit Court of Appeals recently ruled that courts can now review the U.S. Customs and Border Protection’s (CBP) decisions regarding the Secure Electronic Network for Travelers Rapid Inspection (SENTRI) program. This ruling came after CBP faced scrutiny over its discretionary application of criteria for SENTRI membership.
The dispute centered on whether CBP’s discretion in evaluating individuals’ eligibility for SENTRI was beyond judicial review. Dissenting opinions emphasized the need for defined standards, arguing that without explicit guidelines, courts could not assess the factors that support the approval or denial of a SENTRI application. However, opposing views asserted that the judiciary has the authority to weigh non-exhaustive criteria, citing precedents where courts reviewed similar flexible standards.
The panel’s decision also affirmed the district court’s summary judgment in favor of the government regarding an action to expunge plaintiffs’ records, which were created by several federal agencies as part of a surveillance program. This program had gathered information on individuals believed to be associated with a migrant caravan approaching the U.S.-Mexico border. The court held that retaining these allegedly illegally obtained records did not constitute a concrete injury necessary for standing, as plaintiffs failed to demonstrate that such retention resulted in tangible harm or risk of future harm.
Judge Schroeder, concurring, noted that the plaintiffs did not challenge the governmental conduct in obtaining the information, as it came from publicly available sources or existing law enforcement databases.
The case stemmed from events between 2018 and 2019 when a large migrant caravan approached the southern border. In response, CBP, in coordination with Immigration and Customs Enforcement (ICE) and the Federal Bureau of Investigation (FBI), launched Operation Secure Line. This operation involved gathering information on individuals believed to be associated with the caravan using both open-source and law enforcement databases.
As part of this effort, CBP created a PowerPoint presentation with information on 67 individuals, including their names, photographs, and alleged roles in the caravan. This presentation was leaked to the media by an ICE agent, bringing the issue to public attention.
Among the plaintiffs were two attorneys from Al Otro Lado, a bi-national advocacy and legal aid organization serving migrants, refugees and deportees in the United States and Mexico, who experienced difficulties at the border but could not directly link their encounters to the leaked presentation.
Another plaintiff, Jacobo Jajati, had his SENTRI membership revoked without explanation. He filed a lawsuit seeking reinstatement, which the district court initially dismissed, citing CBP’s broad discretion. However, the Ninth Circuit panel disagreed, asserting that while CBP has discretion, it does not preclude judicial review.
The panel emphasized that the Administrative Procedure Act (APA) and SENTRI regulations provide meaningful standards allowing courts to assess whether CBP’s decisions were arbitrary or capricious. This ruling underscores that agency discretion is not absolute and that accountability and reasoned decision-making are crucial in administrative actions.
According to CBP, there are over 593,000 SENTRI members, accounting for 28% of cross-border traffic along the Southwest border. The program costs $122.25 and is valid for five years, providing participants with a proximity Radio Frequency Identification (RFID) SENTRI card. Members are vetted on an ongoing basis to ensure compliance and security.
