Discretionary (In)Justice Continued: Discretion as a Tool to Deny Asylum

Authors

Kate Aschenbrenner Rodriguez, Barry UniversityFollow

Abstract

In 2012, I published an article entitled Discretionary (In)justice: The Exercise of Discretion in Claims for Asylum. At that time, I was concerned because of a pattern I had seen of adjudicators in individual cases denying applications for asylum not on the basis of statutory eligibility but instead in an exercise of the adjudicator’s discretion. Since that time, the administrations of both the former President Trump and the now-current President Biden have used every legal tool available to them, including the exercise of discretion in asylum claims, to make it more difficult to obtain asylum and therefore to discourage and prevent asylum seekers from seeking protection in the United States. This article surveys decisions of the Board of Immigration Appeals and the federal Circuit Courts of Appeal and attempted regulations related to the exercise of discretion in asylum claims from 2011 through the summer of 2024 to identify similarities, changes, and trends since Discretionary (In)justice.

It reveals that the issues with the exercise of discretion in claims for asylum uncovered in my analysis of the caselaw from 1980 through 2011 continue to be present. Overlap and fluidity between elements of statutory eligibility and discretionary factors have persisted. Courts still struggle significantly with the role that past and future persecution, including a grant of withholding of removal, should play in the discretionary analysis. Discretionary determinations remain all-encompassing, opening the door to bias and arbitrary decision making. Finally, the inherent meaning of the term discretion is no more clear now than it was previously, and the word continues to be used to mean a number of different things in the same context. New problems have also arisen since 2011, tied to cultural shifts. One relevant cultural shift has been towards increasing politicization of immigration generally and intensifying villainization of asylum seekers specifically. A second noteworthy shift has been growing involvement and pressure by the executive on the administrative agencies including nominally independent adjudicators to achieve results conforming with the executive’s stance. This has resulted in pressure to issue discretionary determinations in individual cases that are increasingly negative as well as attempts to move towards wholesale discretionary denials to categories of asylum seekers.

While I argued in Discretionary (In)justice that perhaps discretion could be sufficiently cabined to avoid these issues, I now believe this is not possible. In order to protect asylum seekers and insulate asylum law from future interference by the president, the exercise of discretion in asylum claims must be abolished. Asylum must be mandatory rather than discretionary.

Recommended Citation

Kate Aschenbrenner Rodriguez, Discretionary (In)Justice Continued: Discretion as a Tool to Deny Asylum, 31 Wash. & Lee J. Civ. Rts. & Soc. Just. 1 (2025).
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol31/iss2/4