Abstract

Excerpted From: Kate Aschenbrenner Rodriguez, Discretionary (In)justice Expanded: Categorical Denials of Asylum, 94 UMKC Law Review 73 (Fall, 2025) (196 Footnotes) (Full Document)

President Trump was once again elected to the presidency on November 6, 2024. He campaigned on an anti-immigrant, anti-asylum seeker platform based on lies and racist, inflammatory rhetoric calculated to play on systemic racism, bias and the fears of some of the public. He has promised to crack down on “illegal immigration” immediately, starting with mass deportations on the first day of his presidency. He takes office with the tools in place to fulfill these promises. President Biden's administration has failed to reverse many of the anti-asylum policies of President Trump's first administration, and furthered Present Trump's agenda of eliminating access to relief for refugees, particularly asylum seekers at the southern border.

This article will focus on one tool that has been used in the attack against asylum seekers in the United States, at least since the Refugee Act of 1980's adoption: the categorical discretionary denials of asylum claims. In 2012, and again in 2024, I analyzed individual, case-by-case discretionary determinations in asylum claims through the decisions of the Board of Immigration Appeals and the Federal Circuit Courts of Appeals. I discovered that the use of discretion in claims for asylum is exceedingly problematic. The vague and malleable meaning of the term “discretion” means that its application is inconsistent and driven by political sentiment and individual bias. The discretionary denial of asylum to those meeting the definition of a “refugee” under the law results in inadequate protection and potentially continued persecution, in violation of the United States' legal and moral obligations to protect refugees. Over the past eight years, a cultural shift has become apparent. Discretionary determinations in asylum claims are expanding--both through individual denials based on minor factors now treated as disqualifying, and through categorical, wholesale denials of asylum to entire groups of seekers, with little regard for their individual circumstances.

This article will explore the second aspect of that expansion by reviewing and analyzing categorical exercises of discretion in asylum claims, primarily categorical discretionary denials. Section II will briefly review the role of discretion in asylum claims generally and will introduce the distinction between individual and categorical discretionary determinations. Section III will explore the historical examples of categorical discretionary denials and the increased reliance on categorical over individual discretionary determinations in the last eight years under President Trump and President Biden. Section IV will look at arguments for and against the use of categorical discretionary denials.

I conclude that the existing problems with the use of categorical discretionary determinations reinforce my conclusion in Discretionary (In)Justice I and Discretionary (In)Justice Continued that asylum should be mandatory rather than discretionary. The provisions of law authorizing categorical “discretionary” denials should be repealed or interpreted much more narrowly, with a focus on our legal and moral obligations to protect vulnerable refugees. The Supreme Court's decision in Loper Bright abolishing the use of the Chevron doctrine provides a unique opportunity to revisit this issue. While the eradication of categorical discretionary denials will be more difficult than eliminating individual discretionary determinations, it is even more necessary in order to prevent future attacks on the asylum process by the Executive Branch.

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The existing problems with the use of categorical discretionary determinations in asylum claims discussed in this article reinforce my conclusion in Discretionary (In)Justice I and Discretionary (In)Justice Continued that asylum should be mandatory rather than discretionary. Categorical discretionary denials of asylum have expanded exponentially, particularly in the last year with the implementation of Circumvention of Lawful Pathways and Securing the Border. While there are real problems in need of reform in our law and procedures governing asylum claims in the United States, categorical discretionary denials of asylum to refugees facing persecution and in need of protection is not the answer. The provisions of law authorizing categorical discretionary denials should be repealed or interpreted much more narrowly, with a focus on our legal and moral obligations to protect vulnerable refugees. The Supreme Court's decision in Loper Bright abolishing the use of the Chevron doctrine provides a unique opportunity to revisit this issue. While the eradication of categorical discretionary denials will be more difficult than eliminating individual discretionary determinations, it is even more necessary in order to prevent future attacks on asylum by the Executive Branch.

Associate Professor and Director of the Immigration Clinic and Interim Director of Clinical Programs, Barry University School of Law, Orlando, Florida. LL.M., Georgetown University Law Center, J.D., New York University School of Law; B.A., Knox College.