Discretionary (In)Justice: The Exercise of Discretion in Claims for Asylum

Abstract

Section 208(a) of the Immigration and Nationality Act provides that asylum may be granted to an applicant who meets the definition of a refugee - that is, someone who has been persecuted or has a well-founded fear of future persecution in her own country on account of race, religion, nationality, political opinion, or membership in a particular social group. Asylum is a discretionary form of relief, which means that the United States government is not required to grant asylum to every refugee within the United States but instead may decide whether or not to do so.

This Article sets out in Part I the history and current application of discretion as an element of asylum adjudications, including several case studies to illustrate when and how adjudicators deny asylum in an exercise of discretion and the serious impact of those decisions. Part II then argues that the fact that asylum is discretionary is highly problematic. First, discretion is unnecessary to achieve the purported goals of such a policy, namely, screening individuals for their suitability to become permanent members of the United States community. Second, the fact that asylum is discretionary results in inadequate protection for those fleeing persecution. Finally, the meaning of the term "discretion" is so inherently vague and confused as to make its use inappropriate, at least in the asylum context. This Article concludes that asylum should be a mandatory, not a discretionary, form of immigration relief. An adjudicator's exercise of discretion in asylum claims should be eliminated, or at least substantially limited with an eye towards the problems discussed herein.

Keywords: discretion, asylum, immigration