Fragmented Grounds: Chevron’s Collapse and Geographical Disparity in U.S. Asylum Law

Asylum seekers in the United States face a precarious pathway to humanitarian protection, shaped by institutional fragmentation and interpretative discretion. For nearly four decades until June 2024, U.S. courts were required to defer to interpretations issued by the Board of Immigration Appeals (BIA) under the doctrine of Chevron deference. This legal rule gave federal agencies, such as the BIA, the primary authority to interpret ambiguous legal provisions in immigration law that determine eligibility for asylum. Despite its varying success in promoting national uniformity in the application and interpretation of asylum law provisions, Chevron deference served as a structural safeguard, by allowing agencies with subject-matter expertise, like the BIA, to guide the development of immigration law rather than leaving key questions to vary circuit by circuit. Following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo (2024), overturning Chevron, courts now have greater autonomy to interpret these provisions—such as the definition of “persecution”—without binding deference to agency. [1] Yet, even before the loss of Chevron deference, U.S. courts showed significant differences in interpretation and turn in decisions on asylum claims, especially, between circuits whose regions exhibit different political leanings across the country. 

The overturning of Chevron deference perpetuates existing geographical disparities in asylum adjudication, as shown by the divergent interpretations of similar persecution claims between the Fifth and Ninth Circuits, specifically in Kumar v. Garland (2024) and Argueta-Hernandez v. Garland (2023). This case study illustrates how such disparities, if left to widen, risk entrenching a fragmented asylum system in which geography, rather than the merits of a claim, determines access to humanitarian protection. Although both decisions only slightly predate the U.S. Supreme Court’s ruling in Loper Bright, they exemplify the degree of interpretive divergence that existed even under Chevron deference. They suggest that such inconsistencies are likely to deepen in a post-Chevron legal framework, where courts are less constrained by agency interpretations and therefore more inclined to apply ideological or regionally influenced readings—operating without any meaningful safeguard to mitigate this discretion.

Chevron deference was established by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council (1984), a case involving the Environmental Protection Agency’s (EPA) interpretation of environmental regulations. [2] The Court held that when a statute is left unclear, or when Congress has “left a gap for the agency to fill,” authority is delegated to the agency to provide a reasonable interpretation of the statute. [3] Moreover, whether Congress explicitly or implicitly leaves the gap, Chevron requires that “a court may not substitute its construction of a statutory provision” for a reasonable agency interpretation. [4] Though in practice, Chevron served only as a partial safeguard against interpretive inconsistency. With this albeit influential but ultimately imperfect safeguard dismantled, courts now exercise that freedom with fewer constraints—making it more likely that political or ideological considerations will shape immigration law at the expense of consistency in humanitarian protection. [5]

In Kumar v. Garland (2024), the Ninth Circuit, located in San Francisco, California, reviewed the claim of Sandeep Kumar, a citizen of India seeking political asylum. Under U.S. asylum law, an individual may be eligible for protection provided that they can demonstrate that they have faced past persecution, such as credible threats to their life or instances of physical harm. Kumar testified that he had received both death threats and experienced physical mistreatment because of his political affiliation and activities. For asylum seekers like Kumar, these threats and incidents of physical violence exist against a broader backdrop of political repression. According to the U.S. State Department’s “2022 Country Reports on Human Rights Practices: India” widespread arbitrary detention and violence against political dissidents are credible threats to politically active individuals such as Kumar. [6] Yet despite this seemingly credible testimony and supporting documented evidence, the BIA ruled against him, finding that the threats he faced did not cause “significant actual suffering or harm.” [7] The BIA’s ruling also diminished the seriousness of the threats posed to Kumar’s life, asserting that such threats, “while uniformly unpleasant, often do not affect significant actual suffering or harm. [8] 

The Ninth Circuit ultimately rejected the BIA’s interpretation of Kumar’s claim not only on the basis that his claims met the legal standard for persecution, but after a reevaluation of the factual record. The court emphasized that his experienced persecution involved not merely vague threats, the combination of physical harm combined with a credible and “connected” threat to his life. When compounded, the Ninth Circuit deemed that these factors met the legal definition of persecution. [9] The Court also held that the BIA’s basis for rejecting Kumar’s claim, deciding that it was “unsupported by substantial evidence” given the “cumulative effect of all the incidents” documented in his record. [10] By looking at the full context of his situation rather than isolating the seriousness of each threat or injury, the Ninth Circuit took a more holistic approach to Kumar’s asylum claim—recognizing that the experience of danger and harm often accumulates, and warrants protection under U.S. asylum law. The Ninth Circuit reaffirmed that the legal standard for persecution should account for the broader lived experience of asylum seekers as opposed to the narrow interpretation of isolated instances. 

The Fifth Circuit, located in New Orleans, Louisiana, considered the asylum appeal of Samuel de Jesus Argueta-Hernandez, a citizen of El Salvador who sought protection based on threats and physical harm. Argueta-Hernandez v. Garland (2023), the applicant testified that he had received death threats from gang members and suffered physical mistreatment—similar to Kumar’s cumulative persecution. Argueta-Hernandez’s testimony was corroborated by police reports and other evidence, including attempted harm towards his son. [11] Further, the political circumstances of Argueta-Hernandez’s asylum claim are informed by broader systemic issues threatening public safety in El Salvador—namely, widespread violence and government repression. In the U.S. State Department’s 2022 Human Rights Report on El Salvador, arbitrary arrests and abuses at the hands of security forces, and their impunity, persisted across law

enforcement and judicial institutions, perpetuating unchecked harm. [12] Despite Argueta-Hernandez’s claim having credible and documented evidence that signaled persecution eligibility, the Immigration Judge (IJ) in his case found him ineligible for protection. The IJ cited strikingly similar concerns to the seriousness of his threats as was done in response to Kumar’s claim, emphasizing that “verbal threats are generally insufficient to constitute persecution” [13] This ruling was affirmed by the BIA, which concluded that the threats and mistreatment Argueta-Hernandez faced—even when considered alongside the harm directed at his son—did not rise to the level of valid persecution. 

Argueta-Hernandez’s case was returned to the Fifth Circuit for rehearing after the Supreme Court’s decision in Niz-Chavez v. Garland (2021), which held that the government must issue a single, complete notice to appear in removal proceedings. While this ruling strengthened procedural protections for noncitizens, the Fifth Circuit’s approach towards the rehearing of Argueta-Hernandez’s case remained restrictive. While Niz-Chavez addressed procedural notice requirements, it did not alter the substantive legal standards for asylum, such as the definition of persecution. [14] Argueta-Hernandez argued in his case’s rehearing that the BIA had failed to meaningfully consider the impact of the harms he suffered, including “religious and liberty deprivations, psychological harm, and cumulative harm.” [15] The court acknowledged that death threats and “other serious harms constitute persecution when they are objectively credible” and agreed that the BIA had misapplied prevailing case law by overlooking key evidence. [16] Yet despite recognizing these particular dimensions of persecution, the court ultimately maintained that Argueta-Hernandez's claim did not meet the requisite threshold. The oversights of the BIA, failing to recognize Argueta-Hernandez’s religious persecution as well as the threats to his physical safety, were openly criticized by the Fifth Circuit when they granted Argueta-Hernandez’s case a second look. However, the court still declined to grant protection, instead remanding the case. This restrained outcome—despite a strong factual and legal record—reflects a more conservative judicial approach that favors procedural correction over affirmative intervention. A restrictive and arguably segmented approach prevailed, treating each form of harm in isolation rather than assessing their cumulative effect. In contrast to the Ninth Circuit’s approach in Kumar, which treated cumulative harm as central to determining eligibility, the Fifth Circuit’s framework narrowed the scope of protection. 

The treatment of Kumar’s and Argueta-Hernandez’s claims also reveals that, even with Chevron deference formally in place, courts exercised significant discretion over how asylum standards were applied. While Chevron required deference to reasonable agency interpretations, both the Ninth and Fifth Circuits independently scrutinized the BIA’s conclusions based on their readings of factual evidence and legal standards. In Kumar’s case, the Ninth Circuit rejected the BIA’s findings as unsupported by the cumulative harm presented. In contrast, the Fifth Circuit, even when acknowledging serious flaws in the BIA’s reasoning in Argueta-Hernandez’s case, initially affirmed its denial of relief and ultimately maintained a restrictive interpretation of persecution upon rehearing. The overturning of Chevron’s impacts only how courts review legal interpretations, not necessarily the factual determinations made by immigration judges or the BIA. However, when legal standards like “persecution” depend heavily on how facts are framed, courts may feel more empowered to reassess the record in order to reach different legal conclusions. 

The divergent outcomes in Kumar and Argueta-Hernandez’s cases, even under a Chevron framework, demonstrate how interpretations of persecution can vary dramatically based on the judicial approach. These divergent outcomes reflect not only geographic variation, but also underlying differences in judicial philosophy, regional political context, and the standards courts apply in reviewing agency determinations. Since Chevron’s overturning, the U.S. Supreme Court has opened a new chapter in administrative and immigration law, one that carries a profound humanitarian cost for asylum seekers. Courts now possess even greater discretion, exacerbating the risk that an asylum applicant’s access to protection will increasingly depend on geography rather than the merits of their claim. If geography, rather than individual need, becomes the primary determinant of access to protection, the humanitarian promises embedded in U.S. asylum law risk eroding into arbitrary outcomes. Ensuring a consistent and fair interpretation of persecution standards across jurisdictions is no longer simply a question of doctrinal preference. Instead, it can be a matter of upholding the fundamental commitments of humanitarian refuge. 

Legal scholars have long warned that asylum adjudication in the United States reflects deep structural inconsistencies—issues that Chevron only partially contained. These inconsistencies are now laid bare, as courts have even fewer constraints against divergent interpretations. An empirical study by Georgetown’s Law Center described the problem as “refugee roulette,” emphasizing that “whether an asylum applicant can live safely in the United States or is deported to a country in which he claims to fear persecution is very seriously influenced by a spin of the wheel of chance.” [17] The findings revealed statistically stark disparities across circuits, where an applicant’s chance of receiving a remand could vary by as much as 1800% depending on geography. [18] Beyond geographical disparities, scholars have also warned that Chevron’s overturning could open the asylum process to even greater political instability. Legal scholar Michael Kagan writing in The Houston Law Review cautions that “politicizing this process, and then deferring to political choices, would insert considerable instability into a high-stakes area of law and would make resolution of a question of law depend ultimately on who won the last presidential election, not on legal analysis.” [19] Kagan’s warning about the politicization of asylum law already taking shape under Chevron deference now looms larger in its absence, as courts face fewer structural constraints on how ideological considerations may shape their rulings.

In a post-Chevron landscape, the risk is not only that access to protection will vary dramatically across jurisdictions, but also that asylum law will become increasingly contingent on shifting political winds rather than consistent humanitarian principles. This unfolding era calls for reaffirming the humanitarian purpose at the heart of asylum law. As courts exercise greater interpretive freedom, the fundamental promise of refuge for those fleeing persecution mustn't be diluted. Ensuring that humanitarian protections remain accessible, even amid interpretive variation, is vital to upholding the integrity of U.S. refugee commitments.

Edited by Yoona Lee

[1] Loper Bright Enterprises v. Raimondo, 602 U.S. ___ (2024).

[2] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[3] Ibid., 467 U.S. 844.

[4] Ibid.

[5] Elizabeth Carlson and Allyson DiPofi, “The Supreme Court’s Overturning of Chevron Doctrine and Its Effect on Immigration Matters,” Catholic Legal Immigration Network, Inc., July 20th, 2024, online at https://www.cliniclegal.org/resources/litigation/supreme-courts-overturning-chevron-doctrine-and-its-effect-immigration-matters.

[6] “2022 Country Reports on Human Rights Practices: India,” U.S. Department of State, online at https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/india/.

[7] Kumar v. Garland, No. 23-308 (9th Cir. 2024), p. 9.

[8] Ibid.

[9] Kumar v. Garland, p. 11.

[10] Kumar v. Garland, pp. 14–15.

[11] Argueta-Hernandez v. Garland, No. 22-60307 (5th Cir. 2023), p. 2.

[12] “2022 Country Reports on Human Rights Practices: El Salvador,” U.S. Department of State, online at https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/el-salvador/.

[13] Argueta-Hernandez v. Garland, p. 4.

[14] Niz-Chavez v. Garland, 593 U.S. ___ (2021).

[15] Argueta-Hernandez v. Garland (rehearing), No. 22-60307 (5th Cir. 2024), p. 9.

[16] Argueta-Hernandez v. Garland (rehearing), p. 12.

[17] Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip Schrag, “Refugee Roulette: Disparities in Asylum Adjudication,” Stanford Law Review 60, no. 2 (2007), p. 378.

[18] Ibid, p. 363.

[19] Michael Kagan, “Chevron’s Asylum: Judicial Deference in Refugee Cases,” Houston Law Review, 2020, p. 1170, online at https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=2362&context=facpub.