Making Protection Unexceptional: A Reconceptualization of the U.S. Asylum System

59 Pages Posted: 7 Mar 2023 Last revised: 14 Jun 2023

See all articles by Denise L. Gilman

Denise L. Gilman

University of Texas at Austin - School of Law

Date Written: March 2, 2023


This Article posits that the United States treats asylum as exceptional, meaning that asylum is presumptively unavailable and is offered only in rare cases. This exceptionality conceit, combined with an exclusionary apparatus, creates a problematic cycle. The claims of asylum seekers arriving as part of wide-scale refugee flows are discounted, and restrictive policies are adopted to block these claims. When the claims mount anyway, the United States asserts “crisis” and deploys new exclusionary measures. The problems created by the asylum system are not addressed but instead deepen. The Article commends a turn away from policies that have led down the same paths once and again.

The Article first describes the development of the modern U.S. asylum system, highlighting data demonstrating that the system has exceptionality as a basic feature. In doing so, the Article reconsiders an assumption underlying much scholarship that the U.S. asylum system is fundamentally a generous one even if it has sometimes failed to live up to its promise. The Article then establishes that the emphasis on exceptionality has led to an exclusionary asylum process, which mostly takes place in the context of deportation proceedings and layers on additional procedural barriers. Next, the Article documents how the system places genuine refugees in danger while causing violence at the border. Further, embedded bias in the system, resulting from the focus on exceptionality, creates a legitimacy problem. The system discredits commonly-arising claims from neighboring nations, particularly Central America, while favoring asylum seekers from distant nations such as China. The system also violates U.S. law as well as international human rights and refugee law.

The Article concludes by offering suggestions for more stable, effective, and humane policies to address refugee arrivals in the United States. In addition to eliminating many existing substantive restrictions on asylum, the system should incorporate presumptions of asylum eligibility for applicants from designated nations or situations that are sending significant refugee flows. In addition, the United States should adopt a specialized non-adversarial asylum system for all cases, apart from the deportation system and with genuine independent review of denials of asylum.

Keywords: refugee, asylum, border, international, human rights, migration

Suggested Citation

Gilman, Denise L., Making Protection Unexceptional: A Reconceptualization of the U.S. Asylum System (March 2, 2023). Loyola University Chicago Law Journal, Forthcoming, U of Texas Law, Legal Studies Research Paper , Available at SSRN: or

Denise L. Gilman (Contact Author)

University of Texas at Austin - School of Law ( email )

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Austin, TX 78751
United States
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