As I recall your statistic, 40% of asylum applicants are approved at their hearing years hence. That also means that six out ten are not facing the kind of persecution necessary to qualify as a genuine asylee. It is this 60% I say are attempting to game the system by claiming a status they are not eligible for.

There is a difference between losing your hearing and gaming the system.

For example, not every plaintiff that loses their lawsuit was bringing a frivolous case. Sometimes you can have a very strong case and still lose. Sometimes you can have a moderately good case, but still know going in that there's a non-trivial chance that the defendant will prevail. And sometimes you might think you only have a modest chance at winning - but it's not gaming the courts to want to put a colorable (if not the strongest) case in front of a judge or jury.

If someone comes in with a case that has a 40/60 chance of winning in court, then they absolutely have every right and merit to bring that case - and it's not gaming the system for them to do it, even though there's a decent chance they'll lose. And that collective 40/60 chance of success comes (again) from a group of people who are mostly poor, mostly unrepresented by counsel, mostly don't have access to any kind of discovery or documentation from their home country, mostly not speaking the native language, and mostly not having any familiarity with our legal system.

Yeah, on the whole they're clearly not "gaming the system." On the whole, they're a group of people who have legitimate (if not always successful) claims for asylum. Sometimes they win, sometimes they lose - but this is not a group that is on the whole making these claims up.