Since 2018, multiple presidential administrations have used the discretion provision – an obscure quirk of United States legislation—to justify wide-reaching changes in asylum policy that run counter to international law. The grant of asylum in the United States has long been at the discretion of the adjudicator, whereas under international law, states are required to grant asylum to those who meet the legal definition and do not trigger exclusion clauses. Although this may seem like a small technical detail, it has taken on outsized importance in recent years. With no realistic hope of Congressional action on immigration, United States presidents have started to rely on the discretion provision as a “loophole” for larger policy change, for instance, by directing adjudicators to use discretion to deny asylum for acts such as irregular entry and transit through a third country. This compounds the international law violations: not only is discretion out of step with international standards on fair adjudication, the United States is using it to justify policies that undermine fundamental refugee law norms on access to asylum.

The United States is challenged by changing displacement patterns and far higher numbers of asylum seekers than anticipated when domestic asylum legislation was written in 1980. However, using the discretion loophole to make sweeping policy changes amounts to stepping around Congress’s mandated authority on immigration and going outside of the treaty-based international legal framework. While this may seem like a small issue in light of the complexity and turmoil in asylum and refugee protection, it inadvertently gives the executive scope to make broad policy changes without legislative oversight. To preserve the integrity of U.S. asylum law and ensure compliance with international obligations, Congress should close the discretion loophole, reasserting its role in addressing modern displacement challenges.