Manufacturing Confusion: How Executive Branch Failures Contributed to the Collapse of Intelligible Asylum Standards—and Six Administrative Actions to Promote Systemic Coherence in the U.S. Asylum System

Executive Summary This article argues that the contemporary crisis in the U.S. asylum system is not merely the product of recent political attacks on refugee protection, but also of a decades-long failure by the executive branch to articulate clear and coherent standards governing asylum eligibility. It is informed by the author’s years of experience working within the federal government’s administration of refugee, asylum, and humanitarian protection law and policy. Focusing primarily on interpretive issues that arise in asylum claims based on the “particular social group” ground, the article traces how fragmented precedent, inconsistent administrative interpretations, and repeated failures to complete rulemaking have produced a body of asylum law that is increasingly complex, unpredictable, and disconnected from principled adjudication. It contends that reliance on case-by-case appellate review to articulate analysis—within institutional structures oriented primarily toward defending denials of protection—has distorted the development of asylum doctrine and contributed to inefficiency, backlogs, inconsistent case outcomes, and declining public confidence in the legitimacy of asylum. By examining the history of key administrative and precedential developments, including efforts to address gender-based and family-based asylum claims, the article demonstrates how missed opportunities for regulatory clarification have enabled restrictive and analytically flawed interpretations to become entrenched. It concludes by identifying six discrete administrative actions that policy makers could pursue individually or in combination to promote fair and coherent standards, improve adjudicatory consistency and efficiency, and mitigate systemic distortions that undermine the asylum system: Promulgate clear, generally applicable regulations establishing a comprehensive framework for interpreting asylum eligibility standards, including particular social group, political opinion, nexus (establishing persecution on a protected ground), and state protection requirements. Provide comprehensive cross-component training for agency immigration officers and attorneys to promote consistent interpretation and implementation of refugee, asylum, and humanitarian protection laws across Department of Homeland Security agencies. Create mechanisms for grants of asylum in the non-adversarial affirmative process to generate administrative precedent and contribute to the development of more coherent, administrable, and protection-oriented standards. Expand the use of non-adversarial adjudication by providing USCIS with initial jurisdiction over asylum claims, promoting more consistent and protection-oriented decision making before cases enter adversarial removal proceedings. Clarify the evidentiary sufficiency of reliable country conditions information to support more accurate, efficient, and consistent fact-finding in asylum adjudications. Establish regular mechanisms to synthesize country conditions evidence and streamline adjudication of recurring categories of claims for which such evidence can reliably establish core elements of eligibility.