DHS allows some affirmative asylum cases to go to immigration court without an interview
The Department of Homeland Security has changed how some affirmative asylum applications are handled, allowing U.S. Citizenship and Immigration Services to refer cases to the Justice Department’s immigration courts without first conducting an asylum interview.
The interim final rule took effect July 28, 2026. It applies to affirmative asylum processing nationwide and changes a procedural step that has been central to how those applications are adjudicated.
The change does not mean every affirmative asylum applicant will lose an interview. USCIS may still offer an interview before granting or denying an asylum application. The rule also does not eliminate review by an immigration judge after a case is referred.
What the rule changes
Under the new policy, USCIS may refer certain affirmative asylum applications to the Executive Office for Immigration Review, or EOIR, without first conducting an interview with the applicant.
Affirmative asylum applications are submitted through the USCIS process by people seeking protection in the United States. The new referral option means some cases may move from the agency’s process into immigration-court proceedings based on the written record before an asylum interview takes place.
The rule also removes a requirement that referral letters include an assessment of the applicant’s credibility. That assessment concerns how USCIS evaluates the reliability of an applicant’s account. The change therefore affects both the timing of a possible interview and the information required in the communication that sends a case to immigration court.
The Department of Homeland Security issued the measure as an interim final rule rather than as a final permanent regulation. The Federal Register notice is document 2026-15190 and appears at pages 47,101 through 47,128.
What happens after referral
A referral is not a final deportation order. The Justice Department’s EOIR administers the immigration-court system, where immigration judges determine removability and eligibility for relief.
After DHS files a Notice to Appear, immigration-court proceedings can include review of asylum-related claims and other forms of relief. That means a person whose affirmative asylum application is referred may still present the case for consideration in immigration court. The rule changes the path into that process; it does not remove immigration-judge review after referral.
For applicants, the practical consequence is that a case that might previously have proceeded through a USCIS interview before referral could instead be sent to EOIR without that interview. The approved notice does not quantify how many cases USCIS will refer under the new option, so the scale of the change is not yet established.
The rule likewise does not establish that every affirmative asylum applicant will be referred without an interview. Its language concerns certain applications and preserves USCIS’s ability to offer an interview before making an asylum grant or denial.
Comments are due in September
Written public comments on the interim final rule are due September 28, 2026. The comment period provides the next stated opportunity for the public to respond to the change while the interim rule is in effect.
The rule’s long-term status could change after public comments or litigation. The current official notices establish the July 28 effective date and the September 28 comment deadline, but they do not provide a final count of affected cases or determine how the policy will ultimately be applied in every affirmative asylum matter.
Sources
- Executive Office for Immigration Review: Federal Register Notices 2026, U.S. Department of Justice
- Affirmative Asylum Referrals Without Interview, 47101-47128, Federal Register/Government Publishing Office mirror
- Learn About the Immigration Court, Executive Office for Immigration Review
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