DHS’s new rule shifts affirmative asylum claims into an overloaded, adversarial court system.
U.S. Citizenship and Immigration Services (USCIS) announced a rule change to the asylum system on July 28, 2026. The final rule, Affirmative Asylum Referrals Without Interview, allows asylum officers to send certain affirmative applications directly to a Department of Justice immigration court without first interviewing the applicant. It applies to pending and future cases and became effective immediately, although the USCIS, part of the Department of Homeland Security (DHS), is accepting public comments through September 28. USCIS invoked the procedural-rule and foreign-affairs exceptions to issue the rule without advance notice and comment.
The Administration’s efficiency argument deserves serious consideration. USCIS ended fiscal year 2025 with 1,434,145 affirmative asylum cases pending. USCIS estimates that hundreds of thousands of pending cases may involve applicants who filed for asylum more than one year after arriving in the United States, potentially triggering the statutory one-year filing bar. The agency also expects that many future applicants could be referred without an interview because of filing bars, mandatory bars, or discretionary concerns. Federal law does not guarantee every affirmative asylum applicant a USCIS interview, and immigration judges can consider referred claims anew.
But DHS is using the wrong denominator. The relevant question is not how quickly USCIS can reduce its own inventory. It is how accurately and efficiently the federal government resolves protection claims from beginning to end.
The receiving system already had 3,570,145 pending immigration-court matters at the end of the second quarter of fiscal year 2026. The Board of Immigration Appeals, which reviews decisions of Justice Department immigration judges, separately reported 219,945 pending appeals at the end of the first quarter. DHS itself acknowledges that the rule may increase the court backlog and that some applications USCIS could have granted may instead take longer to resolve.
That is not backlog reduction. It is backlog transfer.
An affirmative asylum interview also performs work that paper review often cannot. Applicants may need to explain torture, political violence, sexual assault, or religious persecution. Many file without counsel or through imperfect translations. An asylum officer can clarify inconsistencies, explore exceptions to the one-year deadline, and ask questions that a traumatized applicant did not know to answer. The same process can expose implausible or fraudulent claims.
Under the new rule, USCIS may refer a case based on the written record without guaranteeing an interview or even a request for additional evidence. The rule also eliminates the requirement that a referral letter contain a credibility assessment. For people who filed years ago expecting an interview, an omission that might have been clarified administratively can now become an issue litigated in removal proceedings.
The American Immigration Lawyers Association argues that the change will move thousands of cases into a slower adversarial system and may increase detention. DHS responds that earlier referral may reduce years of legal limbo. The real regulatory question is whether the government has created safeguards to distinguish cases suitable for paper referral from those in which an interview could prevent an avoidable error.
That concern is now being tested in court. On August 19, several immigration-rights organizations filed a federal lawsuit challenging the rule, arguing that DHS unlawfully bypassed required procedures when adopting it and asking the court to vacate the rule. The litigation does not establish that DHS acted unlawfully, but it puts the legality of the agency’s expedited approach squarely before a federal judge.
This question is more urgent because immigration court is not an independent federal judiciary. The Executive Office for Immigration Review, which houses immigration judges and the Board of Immigration Appeals, operates under the authority and supervision of the Attorney General. Both immigration judges and judges on the Board are U.S. Department of Justice employees. Judges are directed to exercise independent judgment, but the Attorney General retains supervisory authority and can appoint and remove adjudicators.
The institutional risk is not theoretical. Reuters reports that the Administration has removed or pushed out more than 100 immigration judges since January 2025. The legal protections surrounding at least some immigration judges have also weakened. In March, the Merit Systems Protection Board held that ordinary federal adverse-action protections could not constitutionally be applied to two Assistant Chief Immigration Judges because they were inferior officers exercising significant adjudicatory and administrative authority, and it dismissed their removal appeals for lack of jurisdiction. The Supreme Court’s subsequent decision in Trump v. Slaughter, emphasizing presidential removal authority over officers who exercise executive power, lends additional support to that reasoning, although the Court expressly left unresolved the status of removal protections for non-Article III adjudicators.
United Nations experts have separately expressed concern that immigration judges may have been targeted because of perceived political affiliations or adjudicative records. Meanwhile, the Justice Department has sworn in the largest class of immigration judges in agency history, and Reuters reported that many of the newly appointed judges came from prosecution or immigration-enforcement backgrounds.
This does not prove that the deck is stacked in any individual case. It shows why structural independence matters: the executive branch can reshape the adjudicatory body while directing the enforcement campaign that supplies its docket.
The results already vary dramatically. Data through August 2025 show that asylum grant rates ranged from 4.8 percent to 97.1 percent among judges in San Francisco and from 2.6 percent to 92.4 percent in New York City. Case mix, nationality, detention, representation, and docket assignments explain some variation, and grant rates alone do not establish bias. But differences approaching 90 percentage points show that assignment to a particular judge can materially affect a claim.
Nor does referral guarantee a conventional merits hearing. An Executive Office for Immigration Review policy memorandum permits judges to dismiss legally insufficient asylum applications without an evidentiary hearing when no material factual dispute requires one. An applicant may therefore lose on a threshold legal issue without receiving either a USCIS interview or a full testimonial hearing.
Recent Board decisions also illustrate the possibility of third-country removal. In Matter of E-A-R-M-, the Board held that an oral DHS motion provided sufficient notice of intended removal under an asylum cooperative agreement. In Matter of N-E-R-S-, it held that DHS need not produce the agreement’s complete implementing terms. These are binding Board of Immigration Appeals precedents on the issues decided, but they do not mean that every referred asylum applicant will face third-country removal. They do show that referral is not merely a change of venue followed inevitably by a conventional asylum trial.
DHS can pursue efficiency without turning the written application into a trapdoor. Before referring a case without an interview, USCIS should identify the apparent defect and ordinarily give the applicant a meaningful opportunity to respond. Supervisors should review discretionary referrals and potentially curable deficiencies. DHS and the Justice Department should publish system-wide data on processing time, detention, representation, outcomes, appeals, and reversals—not merely the number of files removed from USCIS’s inventory.
Congress should also revisit proposals for an independent immigration court. Moving more life-or-death adjudications into a system the executive branch can reorganize strengthens the case for structural separation.
The asylum backlog is a serious management failure. But the interview did not create it. It was one mechanism for resolving claims before they became deportation litigation.
Moving a file is not deciding a case. Efficiency on one agency’s spreadsheet should not be confused with efficiency—or justice—in the system as a whole.
