Give Me Your Tired, Your Poor, Your Huddled Masses The Dangers of Certification Power in U.S. Asylum Law Chaelin Jung
Abstract Asylum cases in United States immigration courts today have been likened to “death penalty cases in a traffic court setting.”1 While much of the proceedings are administrative in nature, the outcomes carry serious implications for those seeking refuge in the country. In fiscal year 2019, judges presided over 67,000 asylum cases, which made up nearly a fourth of total cases in the immigration court system.2 Immigration law more broadly is notoriously complex, adjudicated by its own courts and spanning three federal departments: Homeland Security, Justice, and Health and Human Services. Concerningly, the immigration system lacks an independent judiciary and houses courts within the Department of Justice. In the maze of federal statute, regulations, and appeals court decisions, the Attorney General is able to invoke an authority called certification power to unilaterally overturn even precedent court decisions. Recently, this power has been utilized to constrict protections proffered to asylumseekers, particularly on the basis of a protected ground: particular social group status. In this paper, I first present a background of the relevant asylum law and then argue that the certification power of the Attorney General is susceptible to political abuse and violations of due process. Next, I discuss two prominent particular social groups — gender-based and family-based — to highlight how certification power narrows protections for asylum seekers. Finally, I explore broad implications of this authority on the immigration system and procedural legitimacy.
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