Matter of Diji: The Board Killed a 25-Year Notice Rule It Didn’t Need To

Posted on September 4, 2026 by Mike Baker

Ifeanyi Diji showed up to collect his green card and learned he had already lost. On June 3, 2025, he walked into his marriage-based adjustment interview, married to a United States citizen, and found out an Immigration Judge had ordered him removed in absentia more than two years earlier. He had missed a hearing he says he never saw, mailed to an address he left in January 2019, months before the government ever issued the notice.

He moved to reopen. He lost. Not because the law changed, but because his motion carried his lawyer’s argument and nothing else. No affidavit from him. None from anyone in his household. The Board has said for a generation that counsel’s argument is not evidence, and Diji’s motion proved it.

Then the Board did the thing it did not need to do. In Matter of Diji, 30 I&N Dec. 1 (BIA 2026), an en banc majority used his empty motion to overrule Matter of G-Y-R-, the decision that had shielded people in his position for nearly twenty-five years. DHS never asked for that. When the Board invited both sides to say whether G-Y-R- should fall, the government declined and argued only that Diji loses under the law already on the books. The Board reached past the easy ground and buried the precedent anyway. It called G-Y-R- unworkable, though in absentia orders have only multiplied under it, from 34,330 in 2016 to 311,130 in 2025, which is a strange kind of unworkable.

G-Y-R- rested on one phrase. An address you gave the government did not become the kind of address the government could use against you in absentia until you received the notice to appear and read its warnings about keeping the court current. No receipt, no qualifying address, no valid order. A person who moved before the case began had a clean answer to a removal order entered in his absence: I never got the document that told me the rules, so the address you mailed to never counted. Diji erases that. It reads the statute’s service and in absentia provisions as the same language, treats the phrase “have provided” as reaching back to any address you once gave, and leans on the duty that binds nearly every noncitizen fourteen and older to register an address and keep it current. INA §§ 262, 265. An address you handed USCIS years ago now counts, warnings or not.

The change is easier to see side by side.

Under G-Y-R- (2001–2026) Under Matter of Diji (2026)
An address you gave before the case began Did not count until you received the notice to appear and its warnings. Counts now, warnings or not.
Mailing to an address you had left Could not support an in absentia order if you never received the notice. Supports one, if sent to the most recent address you provided.
Your argument to reopen if you had moved “I never got the document that told me the rules.” Gone. You must rebut delivery with evidence.

Read the headlines and a wall came down. Read the opinion and the reach is narrower because the rule the Board overruled was never the rule that decides these cases. What decides them is receipt, and the fight over receipt survives Diji whole.

None of which makes Diji small. It is a real overruling with real bite, and it bites hardest where a circuit built something on the threshold that G-Y-R- supplied. Even where it does not, it strips away a fallback and moves the entire contest onto a single piece of paper, the affidavit, with nothing behind it when that paper is missing. The question is not whether Diji matters. It is where, and to whom, and the answer runs circuit by circuit.

Start in Chicago, where Diji lands softest, and with the judge who explained why more than twenty years ago.

The Seventh Circuit’s word: Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004). Judge Posner split the question the Board keeps collapsing into one. Whether mailed notice is adequate does not depend on receipt; attempted delivery to the last address is enough, and it satisfies due process. Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999). Whether you can reopen because you never got the notice is a separate question, and there, Posner held, “the intended recipient’s affidavit of nonreceipt is evidence.” That receipt track, not the G-Y-R- threshold, is this circuit’s law, and Diji leaves it standing.

Posner kept no romance about the affidavit. He wrote that most letters arrive and the man swearing he never got this one “has a strong incentive to lie,” that a “bare, uncorroborated, self-serving denial of receipt, even if sworn, is weak evidence,” and that nothing is easier than swearing off a piece of mail while the threat of a perjury charge does almost no work. He believed all of that and still made the judge weigh the sworn denial rather than wave it away, against the ordinary odds that the mail arrives. That weighing is the entire Seventh Circuit rule in these cases. The immigrant who wins is the one who brings enough to tip the scale: his own account, corroboration from the household, prompt action the moment he learned of the order, a real reason he would have shown up.

That is worth sitting with because there is no section 239(a)(1)(F) address anywhere in Posner’s analysis, and no threshold that flips on only after the notice to appear lands. The Seventh Circuit decided these cases on receipt, before G-Y-R- was written and after. So when the Board overruled G-Y-R- this month, it overruled a rule this circuit’s own cases never used. The dissent lists Joshi among the decisions that reached “the same or a similar” result as G-Y-R-. That is loose. Joshi got there by a different road, and it is the road that survives.

Whether the Board’s new reading sticks anywhere depends on ground that shifted under everyone this term. For forty years, when the Board read an ambiguous piece of the immigration statute, the courts of appeals mostly deferred, on the theory that Congress had left the gaps to the agency. INS v. Aguirre-Aguirre, 526 U.S. 415 (1999). Chevron ran the show, and a companion rule, Brand X, let the agency’s reading override a court’s earlier reading of the same statute. That was how a Board decision like Diji could reach into a circuit and displace its precedent. In 2024 the Supreme Court ended it. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Courts now read statutes for themselves and owe the agency nothing on the law, and Brand X cannot outlast the deference that was its whole foundation. An agency can no longer overrule a court by reinterpreting a statute.

The Board built Diji on that new ground and seems not to have felt the drop. It cited Loper Bright once, for the narrow point that stare decisis could not save a precedent the Board deemed wrong, and said nothing about the larger holding that strips the Board’s own reading of any special weight. So Diji arrives in the courts of appeals not as a rule they must accept but as an argument they will grade. The Board’s reading of “have provided” either persuades a court reading the statute cold, or it does not.

In the Seventh Circuit it probably persuades, at least on the part the Board cares about. This circuit has treated attempted delivery to the last address you provided as adequate service since 1999, and Diji‘s reading of “have provided” sits down next to that without a fight. There is also no newer word here to complicate matters. Joshi is more than twenty years old, and the circuit has not returned to the question since, so how it would treat Diji‘s one genuine addition, that a pre-notice address counts, is an open question, though nothing in the circuit’s own law leans against it.

Elsewhere the collision is real. The dissent names the circuits that read these same provisions the way G-Y-R- did and left their own precedent standing: the First in Kozak v. Gonzales, 502 F.3d 34 (1st Cir. 2007), and the Ninth in Hamazaspyan v. Holder, 590 F.3d 744 (9th Cir. 2009). In those circuits that precedent binds the immigration judges and the Board, and with deference gone and Brand X gone, Diji cannot dislodge it by announcement. The Board conceded the principle in the same opinion, admitting that it must follow the law of the circuit in every case arising there and that its own earlier attempt to defy adverse circuit precedent had been improper. The Ninth Circuit, the most protective of these forums and the one that sees the most of these cases, is the likeliest to hold its line and drive the split toward the Supreme Court. That is where Diji is genuinely large, and genuinely unsettled.

Underneath the statutory fight sits a constitutional one the Board handled too fast. Due process has never required that notice reach a person. It requires notice “reasonably calculated, under all the circumstances,” to reach him. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). Mailing to the last address on file usually clears that bar, which is why Posner and this circuit have long said attempted delivery is enough. But the bar is not fixed for every circumstance, and that is the crack Diji papers over. When the government has reason to know its notice failed, or that the address is stale, the Constitution can demand more than another letter to the same door. Jones v. Flowers, 547 U.S. 220 (2006). Diji’s own file carried the signal: the government had denied his benefit request and told him to leave the country, it mailed to an address he had already left, and one of its six mailings came back undelivered. The Board noted the returned envelope and set it aside.

The deeper problem is not any single envelope. It is the trade the rule strikes. Diji pairs the thinnest notice the statute permits, a letter to a years-old address the recipient may never have known was still operative, with the heaviest civil consequence short of removal itself, an order entered in absence and a ten-year bar on the relief the person might have won. INA § 240(b)(7). It puts the risk of the government’s mail practices on the noncitizen and asks almost nothing of the agency that chose to mail rather than serve in person. Posner’s answer to all of it was honest and modest: the affidavit is evidence, so weigh it. Diji keeps that answer while retiring the argument that once sat in front of it, and it gets there by reading the statute for the government at every fork. A court reading the same statute cold, owing the Board no deference, might not.

For all that, the live fight stays where Posner left it, on receipt, on the affidavit, on the weighing, and that fight is untouched. The day after Diji, a Chicago lawyer moving to reopen does what a Chicago lawyer did the day before. He files the client’s sworn account and the family’s, he shows what the client did the hour he learned of the order, he builds the reasons the client would have appeared, and he asks the judge to weigh all of it against a letter that came back to no one. Diji changes the speech, not the trial.

That is why the case that looks like an earthquake reads, from Chicago, more like a hard warning than a new world. The warning is real. Diji himself is the proof of it: a man married to a citizen, eligible on paper for the green card he came in to claim, sunk not by the new rule but by the oldest mistake in this work, a motion built on argument where the law demands a sworn record. The lesson is not that an old address dooms you. It is that the affidavit was always the case, and the lawyer who forgets it loses under any rule, G-Y-R- or Diji.

This is the quiet companion to something I wrote about earlier this year, the mega-master hearing, where one judge moves more than a hundred respondents through a single morning and the docket runs on the people who never appear. Diji is the doctrine that makes those absences final. Fill the room, mail to whatever address is on file, and the ones who never make it through the door are ordered out, unless someone built the record of nonreceipt before the order was entered. The way these hearings are run and the doctrine now point in the same direction.

The larger question belongs to the courts of appeals now, and it will not come out the same in each. In the circuits that leaned on the threshold, the First and the Ninth, the fight is whether their own precedent survives the Board’s about-face, and the Ninth is unlikely to fold. In the Seventh, the fight is smaller and quieter because the thing this court cares about, the weighing of an affidavit against the odds that mail arrives, did not change. Riding underneath all of it is the due process question the Board answered too quickly, which no amount of statutory confidence puts to rest. The Board has spoken. The courts have not. What they do next is the whole story.

The Board overruled the rule that did not decide this case and kept the one that did. In Chicago the answer to a client is short. Bring the affidavit, or the rule you lose under will not matter.

This post is general legal information about a developing area of immigration law, not legal advice, and it does not create an attorney-client relationship. In absentia orders turn on specific facts, deadlines, and your circuit. Anyone facing a missed hearing or an existing removal order should consult a licensed immigration attorney about their own case without delay.

Download the Matter of Diji decision (PDF)

Updates

September 3, 2026. Decision issued. Watching for the first circuit test, especially in the Ninth Circuit, and for any DHS guidance that changes how it serves notices to appear. New sources will be linked here as they post.

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Protected From Deportation, Deported Anyway

Posted on August 29, 2026 by Mike Baker

A protected man, a blank space on a removal notice, and a government working down a list of countries until one says yes.

Nabil reports to a federal building on a morning he expects to be routine. He has done it for years. He is an Iraqi Chaldean Christian who came here as a boy, held a green card, lost it to two convictions born of a heroin addiction he beat before his children were born, and stayed because in 2001 an immigration judge ordered that he could be removed to any country except Iraq. That order still stands. No one has ever lifted it.

This morning an officer hands him a letter. It tells him to get a travel document and prepare to leave. Not to Iraq. The letter does not say where.

He asks where. The officer does not know. Knowing is not the officer’s job; the letter is. Somewhere above the counter a list is being worked, and the officer’s part of it ends when the paper changes hands.

That blank has a history, and it is not a straight line. For a while the government looked the other way, hunting for a third country and asking Nabil where else he had people. He has none. Everyone he loves is here. It seemed to give up on that. Then it lurched back and told him to obtain a passport for Iraq itself, the one place the order forbids. This morning’s letter is the next lurch. The blank on it is where a country goes, if the government ever finds one it can lawfully use. That blank, and the churn around it, is the subject of this post.

Sit with the last year from where Nabil stands. He has an order of supervision and a work permit. He checks in when he is told to. Late one year an officer looked at his file, saw a man with no foreign ties and a quarter century of compliance, and told him in writing not to come back for two years. Months later, with no mention of that, another officer ordered him to report within weeks and to go obtain an Iraqi passport, which Iraq will not hand to a Christian family that fled it as refugees and holds no Iraqi papers at all. He wrote to the consulate and asked. They answered, in writing, that they cannot issue it. Then a letter arrived telling him the trip was off, for now.

Come in. Do not come in. Get documents that do not exist.

He has been sober for twenty years. He works a skilled trade, raises two American children, and pays for his own lawyer and his own clemency petition out of what he earns. Officers hand his file back and forth, and none of them seems to have read it. His compliance does not protect him; it keeps him legible to the system, on the calendar and easy to move. They do not see the man. They see a case to clear. On the paperwork he is not Nabil. He is an alien registration number, A-078-412-559.

What goes in the blank

The blank is not an oversight. It is the design. And what fills it is a list, a long one, that grows by the month.

Since January 2025 the government has signed removal deals with more than two dozen countries and pursued dozens more. Human Rights First and Refugees International, whose Third Country Deportation Watch follows the flights, count more than 23,000 people shipped to countries not their own, to 26 of them so far, with roughly 44 million dollars in United States money behind the agreements.

The destinations are not gentle. DHS has dropped people into a maximum-security prison in El Salvador. It has sent them to South Sudan and Eswatini, to Ghana, Equatorial Guinea, and Cameroon, to Rwanda, Kosovo, Uzbekistan, Palau, Moldova, and Costa Rica. It tried to fly a group to Libya until a court stopped it. Some of these are places the State Department tells American tourists to stay out of for any reason. The point of the list is not that the countries are safe. The point is that they will open the door of an airplane.

And the countries do not take just anyone. Each agreement names the population the receiving government will accept: single adults, certain nationalities, or, spelled out in more than one deal, convicted criminals. Guatemala took only Central Americans. Eswatini signed up for the people the United States labels criminals, and DHS announced the first flight in exactly those words. So Nabil’s record does not shut these doors. It opens the wrong ones. A possession charge he closed out before his children were born, and a retail-theft case two decades behind him, drop him into the one category these agreements were built to receive. His twenty sober years do not travel. The word convicted does. To the officer working the list, he is not a man who rebuilt his life. He is a checkbox several governments have already agreed to accept.

And the country that takes him does not have to keep him. A woman granted protection in the United States was flown to Ghana, and within a day Ghana put her on a plane back to the country she had fled. Send a protected person to a third country and let that country do the returning, and the United States calls the harm someone else’s act. Chain refoulement launders the one thing the law forbids.

The paperwork is thin on purpose. If the State Department collects a diplomatic assurance that the receiving country will not harm him, Nabil gets no process at all. If there is no assurance, ICE hands him a notice and does not ask whether he is afraid. Silence counts as yes. The plane can leave in 24 hours, or 6 in what ICE calls an exigent case.

So the blank on Nabil’s letter is not sloppiness. It is the whole method. The government does not need to know this morning where he goes. It needs only to keep his removal order alive while it works down the list until some government, somewhere, agrees to take him.

Why the law leaves the blank open

Immigration law protects people by country, not in the abstract. Withholding of removal under 8 U.S.C. § 1231(b)(3) says the government cannot send you to the country where your life or freedom is threatened. Deferral under the Convention Against Torture, 8 C.F.R. § 1208.17, says it cannot send you to the country where you would more likely than not be tortured. Both name a place. Neither confers status. Neither says you may stay. Each says only: not there. Nabil’s 2001 order says not Iraq, and nothing more.

For Nabil the search runs into a wall the government built itself. His deferral holds until an immigration judge lifts it. 8 C.F.R. § 1208.17. A field officer cannot terminate it. Only a judge can, after a hearing and a fresh finding that torture is no longer likely, or the Attorney General can, on formal diplomatic assurances from the receiving country routed through the Secretary of State. § 1208.17(d), (e), (f). No judge has done that, and Iraq has offered no assurance, so the demand that he prepare an Iraqi passport is an order to get ready for a removal the law forbids. The government demands a passport it could not lawfully use, from a consulate that has said in writing it will not issue one, and when no passport appears, the failure is recorded as his. The third-country side is where the money goes, and the law is more permissive there: it lets the government remove him to any country whose government agrees to take him, tie or no tie. 8 U.S.C. § 1231(b)(2)(E)(vii). The trouble is finding one. He has no connection to any country on the list, and the deals are written around nationalities and around the word criminal, not around a specific Iraqi Chaldean with two-decade-old convictions and a family that is entirely here. Some government has to have a reason to take him, and none does. Barred from the one country, unable to place him in another, the government fills the vacuum with churn.

For decades that narrowness was a technicality. The government had a protected person and nowhere else to put him, so he stayed. On February 18, 2025, ICE turned the technicality into a program. It issued a directive calling withholding and CAT “country-specific protections from removal” that do not bar removal from the United States generally. That is the theory in one line, in the government’s own words. Keep the ban on the one country, and go hunting for a second. The statute even supplies the hunting ground: it lists an order of countries for removal, and a third country comes last, available only when the designated country and the countries of citizenship are “impracticable, inadvisable, or impossible.” 8 U.S.C. § 1231(b)(2), (b)(2)(E)(vii). DHS now treats that last slot as a first resort.

The fight over whether it may is D.V.D. v. DHS, and any lawyer with a protected client needs to know where it stands this week, because it moves. Judge Brian Murphy in the District of Massachusetts certified a nationwide class, including people in withholding-only proceedings, and enjoined removals to unnamed third countries without notice and a chance to raise a fear. D.V.D. v. DHS, 778 F. Supp. 3d 355 (D. Mass. 2025). On February 25, 2026, he struck the policy on the merits as “not in accordance with law.” D.V.D. v. DHS, No. CV 25-10676-BEM, 2026 WL 521557 (D. Mass. Feb. 25, 2026). None of it is in force. The Supreme Court had already stayed his injunction back on June 23, 2025, in an unsigned order with no reasoning, over a dissent by Justice Sotomayor, joined by Justices Kagan and Jackson, who called it a gross abuse of the Court’s equitable discretion. DHS v. D.V.D., No. 24A1153 (U.S. June 23, 2025). The First Circuit then stayed the merits ruling too, heard argument on May 13, 2026, and has not decided it. So the policy runs, and the plane matters more than the paperwork.

The case is not an abstraction. It is built on people like its lead plaintiff, O.C.G., a Guatemalan man an immigration judge had already protected from return to Guatemala. He thought he was being released from detention. Instead DHS put him on a bus to Mexico, a country where he had already been raped, with no notice and no chance to say he was afraid. Mexican authorities then handed him a choice that is not a choice: sit months in detention and seek asylum in the country that had brutalized him, or go on to Guatemala, where a judge had already found he would more likely than not be persecuted. He is in hiding in Guatemala now. That is what removal without notice does to a man the law said could not be sent home. Read the complaint and it stops being policy and starts being a series of these.

Third-country removal is not one mechanism. It is a family of them. Nabil’s version runs through a final order and an old protection. A second version runs through the front door: under the Asylum Cooperative Agreements, DHS designates a country like Ecuador as the destination up front and pretermits the protection claim on an individualized-risk showing before it is ever heard, a move I traced through Matter of A-C-M- and its companion decisions earlier this year. Same architecture, different door. This piece is about the first door, the one that opens onto a blank space.

The agreements, and the fight to see them

The Asylum Cooperative Agreements are the paper under that second door. The United States first signed them in 2019 with El Salvador, Guatemala, and Honduras, implemented only the Guatemala deal, and suspended all three in 2021. This administration revived and widened them in 2025. Here is where the main Latin American arrangements stand, and what independent country-conditions reports say waits at the other end.

Country The arrangement What country-conditions reports document
Mexico Receives the largest share of transfers, under bilateral arrangements rather than a formal ACA. Cartel violence, kidnapping and extortion of migrants, acute danger in the border states.
El Salvador 2019 ACA, never used, terminated 2021; 2025 arrangement, including transfers into the CECOT mega-prison. Ongoing state of exception, mass arbitrary detention, prolonged incommunicado confinement.
Guatemala The only 2019 ACA ever implemented, from 2019 to 2021; new agreement in force 2025; takes Central Americans. Weak asylum system, gang violence, little real access to protection.
Honduras 2019 ACA, never used, terminated 2021; new agreement signed June 25, 2025, in force 2025. Gang violence, among the region’s highest homicide rates, thin protection capacity.
Ecuador New 2025 arrangement; a primary pretermission destination. Sharp rise in gang and cartel violence, repeated states of emergency, worst around Guayaquil.

Agreement status and conditions drawn from the Migration and Asylum Lab country reports (February 2026) and the Third Country Deportation Watch.

Notice what the table cannot give you: the agreements themselves. Most have never been published. When the National Immigration Litigation Alliance and Refugees International sued the State Department under the Freedom of Information Act for the deals with Mexico, El Salvador, Guatemala, Honduras, Panama, and Costa Rica, the government produced only heavily redacted records. NILA and Refugees International v. U.S. Department of State (D. Mass., filed June 2025); the transparency docket is public. An earlier suit pried loose ICE’s records on removing withholding and CAT grantees to non-designated countries, which is Nabil’s exact situation. The transparency fights make the same point D.V.D. does from the other side: a policy this consequential runs largely out of sight, and the people it targets, along with their lawyers, are left to argue against documents they are not allowed to read.

He did everything. No door opens.

Here is the part that makes the blank space cruel. Nabil cannot fill it with a way out, because every exit the system seems to offer is sealed.

Start with the pardon he has pending before the Governor. It sounds more powerful than it is. Congress gave a full pardon real immigration effect, but only for listed grounds: crimes of moral turpitude, multiple convictions, aggravated felonies, high-speed flight. 8 U.S.C. § 1227(a)(2)(A)(vi); Matter of Suh, 23 I&N Dec. 626 (BIA 2003). Congress left drug offenses off the list, and courts have said so plainly. Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) (no pardon of a drug offense is recognized under the INA); Eskite v. District Director, 901 F. Supp. 530 (E.D.N.Y. 1995). The Governor could forgive the theft and mean every word, and the heroin conviction would keep doing its work.

Try to vacate the conviction, and, in Illinois, immigration law still asks why. Vacate it for a substantive or procedural defect in the case and it is gone; vacate it out of mercy, or to spare the immigration fallout, and he is still convicted. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, 465 F.3d 263 (6th Cir. 2006); Ali v. Ashcroft, 395 F.3d 722, 728-29 (7th Cir. 2005). A sympathetic prosecutor cannot manufacture a defect that never existed, and twenty-year-old files fight back.

That rule is less solid than it was a month ago. In August the Fourth Circuit walked away from it. In Yanez Piedra v. Blanche, No. 25-1258 (4th Cir. Aug. 24, 2026), the court read the inadmissibility statute for itself, without the deference that used to prop up the Board, and held that a person whose conviction has been vacated and the charge dismissed is simply not an “alien convicted of” the offense under 8 U.S.C. § 1182(a)(2)(A)(i). Why the state court vacated it no longer matters. That reaches straight into Nabil’s case, because Ali never held the Board had the statute right. It held the Board’s reading was reasonable enough to defer to under Chevron, the deference the Supreme Court overruled in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Pull the deference out and Ali‘s footing is exposed. The Fourth Circuit was careful: it decided vacaturs, not expungements or set-asides, and only this one statute, and it is one circuit. For now, in Illinois, Ali still binds, so he still needs a real defect. And even a clean win would open only his path to admissibility, the family door years off. It would not touch the removal order that is final today, or the third country the government is hunting for right now.

Try to build a new status through his family, and the wall is inadmissibility. His children are three and five, too young to petition for anyone. The day the oldest turns 21 and files, the visa is not the problem; admissibility is, because the drug conviction makes him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II). The § 212(h) waiver reaches almost nothing for drugs: a single offense of simple possession of 30 grams or less of marijuana, and no more. Heroin is not marijuana. That carve-out is narrow on both sides of the statute, on the deportability side too, as the Board explained in Matter of Davey, 26 I&N Dec. 37 (BIA 2012), which I covered when it came down. The family door opens years from now onto a wall built in the 1990s.

You might reach, finally, for prosecutorial discretion. For years it was the quiet mechanism that let a man like Nabil stay: the government held a final order it could not carry out, so it forbore, and he lived on supervision, checking in, working, raising his children. That instinct is now policy in reverse. Executive Order 14159 revoked the enforcement priorities that had guided such forbearance, directed every agency to strip out the guidance beneath them, and names people with final orders of removal as targets rather than candidates for mercy. And notice how strange the ask has become. Discretion is normally a front-end question, whether to charge a person or put him in proceedings at all. Nabil is long past that. He is not asking the government to decline to start his case; he is asking it to decline to finish one particular way, to stop hunting for a third country and leave a protected man where the law already left him. That is discretion over how hard to work a removal, not whether to bring one, and it is exactly the forbearance the February directive told officers to withhold.

They do not have to solve any of it.

Now put the two halves together, because the collision is the whole point.

Nabil has done everything the system asks. He served his sentences. He beat the addiction that caused them. He has stayed clean for twenty years, raised two citizen children, worked a trade, reported to ICE on schedule, and asked the Governor for mercy. A judge has already found he would be tortured in Iraq. And none of it opens a door, as the last section showed. He cannot pardon his way out, litigate his way out, or marry and petition his way out.

But here is the turn. The government does not need any of those doors to open, because it is not trying to fix his status. It is trying to remove him, and removal no longer requires solving the thing that keeps him here. DHS does not have to undo his order. It does not have to reckon with his sobriety, his family, his work, or his pardon. It does not have to find a way to legalize a man it has authorized to live and work here for a quarter century. It has to do one thing. It has to find a country.

But here is where Nabil turns the policy inside out. For most people the list is long enough that the government finds a taker in the end. For him it may not. The deals that take a nationality do not take his. The deals that take people the government calls criminals have no reason to want a specific Iraqi Chaldean with old convictions and no tie to Eswatini or Rwanda or Ghana. And the one country he is actually from, the country this whole effort exists to route around, will not issue him a passport. Block Iraq, and the government looks down the list, and the list looks back with no place for this particular man.

So ask the question his file forces. If they cannot send him to Iraq, and cannot find a third country that will take him, what are the 44 million dollars and the two dozen signed agreements actually buying? Not his removal. They are buying the threat of it. The notice that comes and gets pulled. The passport demand that cannot be met. The check-in that leaps from two years out to next week and back. For a man like Nabil, that churn is not the program failing. It is the program working. The government does not need an airport to punish him. It needs him to keep waiting for one.

What to do before the letter comes

For counsel with a protected client, the work is preventive, and it starts now, not on notice day, because after the notice the clock may be a single day.

Name the countries first. Put in writing to ICE, in advance, every country to which your client fears return, not just the country of the deferral. Under the policy, silence is consent and the officer will not ask. Do not let the fear live only in your client’s head on the morning he has 24 hours.

Have the habeas ready. If DHS names a third country, a petition for a writ of habeas corpus in the district of confinement is the tool for notice and a screening before the plane leaves. Keep it as a draft you can finish overnight, not a project you start after the call.

Watch the detention clock. A person with a final order sits in the 90-day removal period while DHS tries to remove him. 8 U.S.C. § 1231(a)(1). When that stretches past six months with no country and no travel document in hand, Zadvydas v. Davis, 533 U.S. 678 (2001), says continued detention offends due process because removal is not reasonably foreseeable. If the receiving country will not document your client, get it in writing and put it on the record.

File the administrative stay on Form I-246. It does not bind ICE, but it builds the record and forces a written answer. None of this is a cure. It is a way to be standing in the right courthouse, with the right paper, before the government finds the country that says yes.

The floor

Now read the number on the tracker as what it is. More than 23,000 people already flown to countries not their own since January 2025, another 30,679 whose asylum cases were pretermitted through June 2026 under the Asylum Cooperative Agreements, and tens of thousands more left in limbo, told not there and waiting to learn where. Each of them comes with a file, and the files come with problems, as everyone’s does. But the number is not a tally of successful deportations. It is a measure of how many people the government has taught to be afraid.

Nabil has not been flown anywhere. Not yet. His file sits in the narrow space between a protection that holds and a policy that does not care, and the only thing standing in that space is a lawyer who saw the next country coming.

Download the practitioner field guide (PDF)

Nabil is a composite. He is drawn from the pattern of these cases and does not depict any single client. Nothing here is legal advice or creates an attorney-client relationship. Third-country removal law is moving quickly; confirm the current posture of the governing authorities before relying on anything in this post.

Key authorities

  • D.V.D. v. DHS, 778 F. Supp. 3d 355 (D. Mass. 2025); D.V.D. v. DHS, 2026 WL 521557 (D. Mass. 2026); DHS v. D.V.D., No. 24A1153 (U.S. 2025)
  • Yanez Piedra v. Blanche, No. 25-1258 (4th Cir. 2026); Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)
  • Matter of Suh, 23 I&N Dec. 626 (BIA 2003); Matter of Pickering, 23 I&N Dec. 621 (BIA 2003); Ali v. Ashcroft, 395 F.3d 722 (7th Cir. 2005); Matter of Davey, 26 I&N Dec. 37 (BIA 2012); Zadvydas v. Davis, 533 U.S. 678 (2001)
  • 8 U.S.C. § 1231(b)(2) & (b)(3); 8 C.F.R. § 1208.17; 8 U.S.C. § 1182(a)(2)(A)(i), § 1182(h), § 1227(a)(2)(A)(vi) & (a)(2)(B)(i)
  • Human Rights First & Refugees International; Third Country Deportation Watch

Related on this blog: Ecuador ACA pretermission · The 30-gram marijuana line

Following the docket: read it yourself with the resource below.

Resource for readers
Reading the docket yourself: CourtListener

Everything cited here, the D.V.D. docket, its filings, and the exhibits, is public and free to read. CourtListener, from the nonprofit Free Law Project, pairs a searchable database of court opinions with the RECAP archive, a growing library of the same PACER documents the federal courts charge for. For most case work, a free account plus the RECAP browser extension gets you close to PACER at no cost.

A free account gives you

  • Full-text search across millions of federal and state opinions.
  • Complete docket sheets, filings, and exhibits, free whenever they are already archived.
  • Docket alerts by email: 5 free, or 15 with the RECAP extension installed.
  • Oral-argument audio, judge profiles, and citation lookup.
Install the RECAP extension

A free add-on for Chrome, Firefox, and Edge. When you open a document on PACER it flags any free copy so you do not pay twice, and it saves what you do buy to the public archive. This is what makes the free account feel close to PACER.

  CourtListener (free) PACER
Cost Free ~$0.10 per page
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Brand-new, unarchived filings Can lag Immediate

Start with the case in this post: D.V.D. v. DHS, No. 1:25-cv-10676 (D. Mass.). The February 18 directive is Document 1, Attachment 4.

Posted in Immigration law, Removal, Removal & Deportation Defense, Removal Defense, removal proceedings | Tagged , , , , , , , , , , , | Leave a comment

USCIS Can Now Send Asylum Seekers to Immigration Court Without an Interview

Posted on August 22, 2026 by Mike Baker

No Interview, No Hearing, No One Watching

By Michael D. Baker

Immigration Equality v. Mullin, No. 1:26-cv-02921 (D.D.C. filed Aug. 19, 2026). It challenges Affirmative Asylum Referrals Without Interview, 91 Fed. Reg. 47101 (July 28, 2026).

On July 28, the Department of Homeland Security ended the asylum interview for the people who need one most. Not by statute. Not after a debate. By a rule it wrote, published, and made effective the same afternoon. USCIS can now take an affirmative asylum application, read the paper, and ship the case to immigration court without ever asking the applicant a single question about what they ran from.

Set that against what this same government did to refugees. In January 2025 it froze the refugee program that had admitted 125,000 people the year before. Then it kept one door open. The fiscal 2026 ceiling came in at 7,500, and by this spring, of the refugees the country admitted for the year, all but three were white South Africans. Race opened the door for the favored few. Paperwork is closing it on everyone else. We built the asylum law, and the protected grounds inside it, to make race a reason to protect a person, not a lever to choose who gets in and who gets processed out. I will come back to that.

The interview is where the case is made

The affirmative asylum interview is not a formality. It is the one place an asylum seeker’s own testimony gets heard, and testimony is the evidence that decides these cases. The statute says so directly: credible testimony can be enough, by itself, to carry the burden, without corroboration. 8 U.S.C. § 1158(b)(1)(B)(ii). The officer’s job is to draw the story out, not to argue for anyone’s removal. The room is non-adversarial. No government lawyer sits across the table trying to send the applicant home.

That room was built for particular people. Children who cannot narrate trauma on a form. Survivors of torture whose memories come out sideways. Speakers of rare languages. LGBTQ and HIV-positive applicants who could not file within a year of arriving because saying the words out loud, to anyone, was dangerous. Oasis Legal Services, one of the plaintiffs, wins the extraordinary-circumstances cases it takes at a rate near ninety-seven percent, and it has more than a thousand affirmative cases in the pipeline against twenty-two in immigration court. The Florence Project represents roughly three hundred unaccompanied children with affirmative asylum claims pending. These are the applicants the rule reaches first.

What the rule does

The rule, in plain terms: USCIS can now send an asylum seeker to immigration court without an interview.

That is the heart of it. The new provision, 8 CFR 208.9(a)(2), says an officer “may refer an affirmative asylum application to an immigration judge, without conducting an interview,” in any case where the applicant “is barred from applying for asylum, is barred from a grant of asylum, does not merit a grant as a matter of discretion, or is not eligible on the merits of the claim.” No one hears the story. The paperwork decides, and the paperwork goes to court.

Five edits to 8 CFR Part 208 carry it. The new 208.9(a)(2) authorizes the referral without interview. The words “right to an interview” come out of 208.10 and 208.14. The line in 208.4(a) that tied the one-year-deadline review to a live interview comes out. And 208.19 drops the requirement that a referral letter assess the applicant’s credibility; that finding is now required only for denials. One more change carries no regulatory text at all: an officer may decide you do not merit asylum as a matter of discretion without ever deciding whether you qualify as a refugee.

The rule does not erase every interview. USCIS says it will still interview an applicant whose case looks grantable. What it carves out is a set of categories, and the largest by far is the one-year filing deadline. By the government’s own count that late-filing group is 444,724 pending cases, close to a third of the affirmative backlog, and it holds many of the people least able to survive the loss of a hearing. The rule is also built to grow: it lets USCIS name new categories for referral without interview by later guidance, so today’s list is a floor, not a ceiling.

Affirmative interview (before) Referral without interview (now)
Who hears you A trained asylum officer, in person No one; an officer reads the file
What decides the case Your testimony, drawn out under oath The form you filed, as filed
The setting Non-adversarial, trauma-informed Adversarial court, later, if at all
Credibility Assessed and explained Not addressed in the referral

An interim rule, already in force

One piece of this is easy to miss, and it matters. This is an interim final rule, not a proposal. A proposed rule sits open for comment and does nothing until the agency finishes it. An interim final rule is the opposite. It took effect the day it published, July 28, 2026, before the public said a word, and it binds asylum officers right now.

DHS is taking comments after the fact, and the window is short. Comments close September 28, 2026, at 11:59 p.m. EDT. Anyone can file one at regulations.gov, under Docket No. USCIS-2026-0199.

Here is what gives that window its weight, and its limits. When it closes, DHS issues a final rule that responds to the comments. It can change the rule, or it can keep the interim version unchanged and make it permanent. In practice, agencies usually finalize an interim rule much as they wrote it, and that is the likeliest outcome here. Doing nothing does not undo it; the interim rule stays in force in the meantime. So the comments are not a formality, and they are not a veto. They build the record, and if this reaches a court, that record is where the fight over whether the rule was arbitrary is won or lost.

The argument, both ways

The rule has already drawn more than a thousand public comments. Read the serious ones, and two real arguments emerge, one on each side. The case for the rule deserves its due because it is stronger than “we want to deport people faster.”

Start with what is true. Nothing in the asylum statute guarantees a USCIS interview, and a referral to immigration court is not a denial. The applicant can still press the claim before a judge. With more than 1.4 million affirmative cases pending and waits past seven years, DHS asks a fair question: why spend an officer’s hours interviewing a case the paper record already shows will be referred anyway? It has numbers behind it. Of the untimely cases it interviewed and then referred over five years, roughly 77 percent were referred because the applicant could not meet the one-year deadline or an exception to it. On that view the rule is triage. Save the interviews for cases where one might produce a grant, and send the threshold-barred cases to the forum that would hear them in the end.

Take that seriously because it is the best the government has. Then ask the harder question. How does USCIS know, from an undeveloped paper record, which cases are the inevitable referrals? The interview was never just a station on the way to court. It does a different job. It is nonadversarial, and the officer’s task is to develop the claim, to ask what the form did not, to surface the changed or extraordinary circumstance that excuses a late filing, to let a trauma survivor explain the gap that reads like a lie on paper. The one-year deadline is the cleanest example. The filing date is obvious. Whether serious illness, a legal disability, the aftereffects of persecution, or bad prior counsel excused the delay is not, and a few minutes of intelligent questioning can turn an easy-looking bar into a grant. The problem only deepens when USCIS refers on discretion or the merits, where nexus and credibility and the weighing of equities live or die on explanation.

The government half concedes it. The rule admits that some people USCIS could have granted will be routed to court instead, and that the change “may shift system-wide efficiency rather than improve it for every agency involved.” Read that twice. The agency is saying it may make the courts’ problem worse, and now and then send to court someone it would have protected, and it will accept those costs to free its own officers. That is a real policy choice, and a fair one to debate. It is not the housekeeping the preamble describes.

What the announcement said out loud

A rule speaks in the careful language of backlog and efficiency. The press release does not. DHS put one out the day before the rule took effect, and it named the target. Director Joseph Edlow said the asylum system “has been exploited for purposes of delay and work authorization, not legitimate claims of protection.” General Counsel James Percival went further: “One of the greatest barriers to effective immigration enforcement is intentional delay by illegal aliens and the open borders attorneys who represent them.”

Read those two sentences and the efficiency rationale falls away. This is not a plan to move strong cases faster. It is a plan to cut a step that slows deportations, and it casts the lawyers who ask for a hearing as the obstacle. The same statement calls the ordinary process a way to “get a second chance at asylum,” as if review by a neutral judge were a loophole and not the law. When the rule tells you it is helping refugees and the press release tells you it is clearing away the attorneys who slow enforcement, believe the press release.

The lawsuit

On August 19, four legal-services organizations went to court to strike the rule down. Immigration Equality, Oasis Legal Services, HIAS, and the Florence Immigrant and Refugee Rights Project filed in the federal district court in Washington, represented by the National Immigrant Justice Center, the Center for Gender and Refugee Studies, and Human Rights First. They did not sue as asylum seekers. They sued as the lawyers because they built their practices around representing people before the asylum office, and the rule pulls the floor out from under that work.

The complaint presses three claims. It says DHS had to run notice and comment before stripping the interview and skipped it. It says the rule breaks the statute three ways: Congress promised an “interview or hearing,” gave USCIS special jurisdiction over children’s cases, and placed discretion after eligibility, and the rule defies each. And it says the rule is arbitrary and capricious because DHS brushed past the reliance of the people it refers, the state of the immigration courts, and the cost of the detention that follows.

The plaintiffs ask the court to freeze the rule now under 5 U.S.C. 705, to declare it unlawful, and to vacate it in full. Nothing is decided yet. A complaint is a set of allegations and a request, not a ruling.

Where the rule is vulnerable

  1. The government’s own data destroys its premise. DHS says these are the weak cases, the ones an interview would not save. Its own table says otherwise. Table 2 of the rule tracks untimely-filed affirmative applications by fiscal year of filing, counted as of December 11, 2025. Across the five years the rule targets first, fiscal 2021 through 2025, USCIS had granted asylum to 14,254 of those applicants and referred 16,870, close to one grant for every referral. 91 Fed. Reg. at 47108. The 2023 filing cohort is the sharpest: 8,091 granted against 893 referred, nearly nine to one. Read that again. These are the cases the agency calls non-meritorious, and it is granting them in large numbers. The interview is where those late filers proved a changed-circumstances or extraordinary-circumstances exception and won. The rule skips the interview for those cases and calls the loss “rare.” The agency’s own numbers say it is not rare at all.
  2. No interview plus no hearing equals nothing. DHS’s whole defense rests on the promise that the immigration judge still hears the claim. That promise is dissolving. The Board of Immigration Appeals has told judges they may pretermit asylum applications without a hearing, see Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), and mega-master calendars now produce removal orders against people who never got real notice. Strip the interview at USCIS, then strip the hearing at EOIR, and “interview or hearing” becomes neither. For unaccompanied children, that reading also guts the special jurisdiction Congress handed USCIS in the Trafficking Victims Protection Reauthorization Act.
  3. A substantive rule wearing a procedural costume. Ending a decades-old right that helps decide who gets deported is not a housekeeping tweak, and it required notice and comment. DHS skipped both. It leaned on the procedural-rule exception, 5 U.S.C. 553(b)(A), and the foreign-affairs exception, 553(a)(1). Neither fits. A rule that changes who gets heard is not merely procedural, and the foreign-affairs claim rests on a February 2025 State Department determination that treats every federal effort to control “the status, entry and exit of people” as a foreign-affairs function. 91 Fed. Reg. at 47116. Read that literally and no immigration rule would ever need public comment, which is not how the courts have drawn the line. The rule also trips over itself. Its APA section never makes a good-cause finding, but a later section asserts that “DHS has found that there is good cause” to make the rule effective at once. Id. at 47126. The finding it points to is not there. And after Loper Bright, the agency’s reading of its own statute gets no deference; a court decides what the words mean on its own.
  4. Discretion before eligibility puts the verdict before the trial. The statute makes discretion the last step, after the applicant proves they are a refugee. 8 U.S.C. § 1158(b)(1)(A). Longstanding Board precedent, Matter of Pula, and DHS’s own training give the equities tied to eligibility the most weight. Letting an officer decide you do not deserve asylum before deciding whether you qualify for it turns the analysis upside down.
  5. It closed its eyes to what it set in motion. DHS addressed reliance interests only for people who hold lawful status, and said almost nothing about the hundreds of thousands it actually refers, people who filed on the understanding they would be interviewed. It did not reckon with what EOIR has become. It did not count the cost of the detention that follows referral, which the complaint puts at no less than $45,000 per person per year. It did not grapple with the plain fact that a child cannot represent herself. And it reversed the position it took in December 2024, when it said asylum officers were well equipped to handle even complex bars, and now insists those same bars are too complex to decide in an interview at all, without admitting it moved.

This is not one rule. It is a campaign.

Pull back, and the interview rule is one move in a longer march. Since the start of 2025 the government has come at asylum from every direction, and USCIS has openly traded its old role as a benefits agency for the work of enforcement.

Count the moves. The southern border was shut to asylum seekers by proclamation, which a federal court has already held unlawful. RAICES v. Mullin (D.C. Cir. 2026). USCIS paused asylum adjudications for months until a court ordered it to resume. It began charging a fee to apply, and another fee for every year a case sits pending. The Board gutted the domestic-violence social group, overruling the precedent that recognized it and applying the replacement without mercy, as I wrote when it decided Matter of V-A-B-. And it built a way to throw asylum cases out on the papers.

That last piece is what makes this rule bite. Pretermission is the immigration-court version of dismissing a claim before any evidence is heard, a motion to dismiss with a removal order attached. A trilogy of Board decisions, Matter of H-A-A-V-, Matter of C-I-G-M- & L-V-S-G-, and Matter of A-C-M-, lets a judge pretermit a Form I-589 and order removal with no hearing at all. The interview rule’s own preamble leans on H-A-A-V- to promise that referred applicants still reach a judge. It is the same decision that lets the judge send them away without listening. The cases run through mega-master calendars, a hundred people to a courtroom, most without counsel, and the Board just cut the time to find a lawyer to a ten-day floor.

Now stack it. USCIS stops interviewing the flagged cases and refers them. The judge pretermits them on the papers. Neither forum ever hears the person. The statute promised an interview or a hearing, and what they built, piece by piece, delivers neither. No single one of these rules ends asylum. Together they hollow it out, and the interview was the last non-adversarial room left.

The court that used to catch this

For years the Seventh Circuit was the backstop, and no judge on it was blunter about the immigration bureaucracy than Richard Posner. In Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005), he did not reach for adjectives. He counted. In the year before he wrote, his court had resolved 136 petitions challenging the Board on the merits and reversed, in whole or in part, in what he called a “staggering” share of them. Then came the sentence every immigration lawyer in this circuit knows by heart: the friction between the courts and the agency exists because “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.”

That was 2005, and the applicant still got an interview, still got a hearing, still got a reasoned decision a court could check. Posner was describing a system that at least went through the motions and still failed. Take away the interview, let the judge pretermit without a hearing, and drop the credibility finding from the referral, and you leave a reviewing court almost nothing to review. You cannot reverse a record that was never made. Posner left the bench in 2017. I do not think he would recognize what is left of the process he spent a career trying to discipline.

Why Congress wrote this law

Start with the definition because the whole fight rests on it. Under the statute, a refugee is a person with a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Those five grounds are not a drafting accident. Congress wrote them as a list of the reasons people get hunted because it had just watched where the hunting leads.

The framework came out of the war. A world that had turned away the people fleeing Nazi persecution wrote the 1951 Refugee Convention and built it on one rule above the rest, non-refoulement: you do not send a person back to a country that will persecute or kill them. The United States joined that framework through the 1967 Protocol, and Congress wrote it into domestic law in the Refugee Act of 1980. The Supreme Court has said it plainly. A primary purpose of that Act was to bring American refugee law into conformance with those treaty obligations, and the statutory definition of a refugee was drawn almost word for word from the Convention. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

Put the country’s own history next to it. The America that turned the St. Louis around in 1939, that let the national-origins quotas do their quiet work while Europe burned, is the America the Refugee Act was written to correct. Congress wrote race and religion and nationality into the definition of a refugee because the country had watched a government sort people by exactly those categories and destroy them, and had helped by looking away. The law was equal parts apology and promise.

Now watch the promise run backward. The same government that cut refugee admissions to 7,500 and reserved them, in the plain text of a Presidential Determination, “primarily allocated among Afrikaners from South Africa,” is the government stripping the interview from everyone else. Race opens the door for the group it favors. Paper closes it on the rest. And the persecution the law was written to hear never gets spoken because the rule makes sure no one asks. That is not the refugee law enforced. It is the refugee law inverted.

The interview was the last place an asylum seeker’s own voice still counted for something. DHS took it, on a Tuesday, and most of the country never looked up.

The comment I filed

Everything above is argument. This is what I did with it. The comment period is the one place the public record on this rule gets made, and that record is what a court will read if the rule is challenged. So I filed a formal objection. Here it is in full. If you want to file your own before the window closes on September 28, you can, and a short starting point follows at the end.

Comments close September 28, 2026, at 11:59 p.m. EDT. File at regulations.gov, Docket No. USCIS-2026-0199.

Comment Filed · Docket USCIS-2026-0199

This rule should be withdrawn. It is substantive rulemaking disguised as procedure. It reads a statutory guarantee out of existence, and DHS’s own data contradict it.

I. This is not procedure.

The procedural-rule exception, 5 U.S.C. 553(b)(A), covers agency mechanics, not rules that decide who receives protection and who faces removal. This rule does the latter. By the rule’s own Table 2, which tracks untimely filings by fiscal year of filing as of December 11, 2025, USCIS granted asylum to 14,254 of these applicants and referred 16,870 across fiscal 2021 through 2025; the 2023 cohort alone ran 8,091 to 893. 91 Fed. Reg. at 47108. A mechanism that grants asylum to thousands is not housekeeping. Eliminating it changes outcomes and required notice and comment.

The foreign-affairs exception fails too. DHS treats control of “the status, entry and exit of people” as foreign affairs. Id. at 47116. That theory would swallow notice and comment for virtually every immigration rule. Backlog management is domestic administration, not diplomacy.

DHS also invokes “good cause” for immediate effectiveness, id. at 47126, yet its preamble supplies no such finding. An agency that cannot identify its exception has not supplied reasoned decision-making.

II. The statute requires process.

DHS reads 8 U.S.C. 1158(d)(5)(A)(ii) to make a forty-five-day deadline mandatory but the interview optional. Congress does not impose a deadline for an event that need never occur. Its reference to “the initial interview or hearing” assumes the applicant receives one. Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), gives DHS no deference for the contrary reading.

DHS says referral preserves a hearing. But Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), permits pretermission on the papers. Remove the USCIS interview and permit an EOIR paper decision, and the statutory promise delivers neither. DHS sends more people into a system the Seventh Circuit found had “fallen below the minimum standards of legal justice.” Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005).

III. DHS’s data defeats its rationale.

DHS calls these weak cases an interview would not save. Its numbers say otherwise: USCIS granted nearly as often as it referred in the targeted group, and nearly nine to one among 2023 filings. Interviews develop late-filing exceptions and credible claims that look thin on paper. DHS cannot call a result rare when its data calls it common.

The rule admits that it may send applicants USCIS could grant to court and “may shift system-wide efficiency rather than improve it for every agency involved.” 91 Fed. Reg. at 47125. An efficiency rule that may not produce efficiency, while risking removal of people USCIS could protect, demands more than assertion.

DHS also reversed itself without explanation. In 2024, it said asylum officers could handle complex bars; now it says those bars are too complex for an interview. FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), requires acknowledgment and explanation.

The core defect is simpler still. DHS assumes an officer can know from a bare application that no late-filing exception applies. Illness, disability, torture, and ineffective prior counsel emerge through an interview. The rule removes the tool that answers the question and treats the question as answered. That is arbitrary. Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983).

IV. Requested action.

Withdraw the rule. If DHS wants referrals without interviews, it must propose that substantive change, take comment, and confront its evidence. Administrative efficiency does not permit the Government to extinguish the process through which a human being may show why return would be unjust.

If you file your own, you do not need to be a lawyer, and you should not copy mine. A comment in your own words counts for far more than a hundred identical ones. Here is a starting point. Change it, and make it yours.

I oppose the rule “Affirmative Asylum Referrals Without Interview” (Docket USCIS-2026-0199). The asylum interview is often the only chance a person has to explain, in their own words, why they fear going home. Sending cases to immigration court without it means real claims will be lost on paperwork alone. [Add your own reason or experience here.] Please withdraw the rule.

Download the complaint (PDF)

This post is commentary on a pending case and a published rule. It is not legal advice, and reading it does not create an attorney-client relationship. If you have an affirmative asylum application on file, talk to a lawyer about your specific situation.

Updates

August 22, 2026. Post published. The rule is in effect and the case is newly filed. I will add developments here as they come: any ruling on the plaintiffs’ request to freeze the rule, the government’s response, and new figures as USCIS begins referring cases without interviews.

Posted in BIA, Board of Immigration Appeals, EOIR, Executive Office for Immigration Review | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

The Public Charge Net Widens on September 18, 2026

Posted on August 19, 2026 by Mike Baker

By Michael D. Baker

On September 18, 2026, the government widens the public charge test for green cards. USCIS will weigh nearly any government benefit an applicant uses, not just cash welfare. The USCIS policy alert that spells this out follows a final rule DHS published in the Federal Register on July 20, 2026. See 91 FR 45324.

For years the rule was narrow. A family could use Medicaid, SNAP, WIC, housing help, or a school lunch, and none of it counted against the green card. That ends for benefits used on or after September 18. The applicant’s own benefit use can now become the reason a case is denied.

More green card applicants can now be denied for using the kind of benefits that were safe to use before. The old test asked whether you were likely to become primarily dependent on the government. That word is gone.

The old rule, and the new one

The law here is old. Congress wrote a public charge ground into the immigration statute in 1882 and has kept one ever since. It sits today at INA 212(a)(4). It bars a green card to anyone “likely at any time to become a public charge.” Congress never defined the term. In 1996 it named five factors the officer must weigh, and no more.

Since 1999, and again under the 2022 rule, the government read the term narrowly. You were a public charge only if you were likely to become primarily dependent on the government, shown by cash welfare for income or long-term institutional care at public expense. Food stamps, Medicaid, housing vouchers, WIC, a Pell grant. None of it counted.

The 2026 rule strikes that ceiling. It rescinds the 2022 rule (87 FR 55472) and drops the word “primarily.” USCIS now says it is proper “to allow for consideration of the receipt of any means-tested public benefit irrespective of the time frame” when deciding whether someone is likely to become a public charge.

The rule’s own rationale

DHS is blunt about why. It calls the 2022 rule “not the best implementation of the statute,” one that “straitjacket[ed]” its officers, and says the rescission “restores broader discretion for DHS officers to evaluate all pertinent facts.” It leans on the 1996 welfare law, which says aliens should “rely on their own capabilities and the resources of their families, their sponsors, and private organizations.” The 2026 rule reads that as a command to count almost any public benefit.

What it actually does

The rule the officer applies depends on the date you file. The benefits that count depend on the date you received them. File before September 18, 2026, and your whole case runs under the old narrow rule. File on or after, and the wide rule governs. Benefits you received before September 18 are always judged under the old list. Only benefits received on or after that date draw the full new treatment.

Before Sept 18, 2026 On or after Sept 18, 2026
The test Likely to become primarily dependent Likely to depend on means-tested benefits to meet your needs
Cash welfare (TANF, SSI, GA) Counts Counts
Long-term institutional care Counts Counts
SNAP, Medicaid, CHIP, WIC Does not count Counts
Housing aid, college financial aid Does not count Counts

USCIS puts a human face on it in its own examples. In one, a spouse loses her job, unemployment runs out, and the family turns to TANF, SNAP, and Medicaid to get through. A joint sponsor files a sufficient affidavit. The officer denies the case anyway, on a record showing a household in dire straits and an applicant whose part-time wages cannot carry it. That is the machine working as designed.

Who it reaches

This is USCIS adjustment of status. It applies to the people who file Form I-485: spouses, parents, and children of citizens; family preference applicants; most employment-based applicants; diversity visa winners.

It does not reach the border or the consulate. Customs and Border Protection handles admission at ports of entry. The State Department handles immigrant visas abroad. Neither runs on this guidance, and neither does adjustment before the immigration court.

Exempt, and untouched

Congress exempted a long list from the public charge ground entirely: refugees and asylees, T and U visa victims, VAWA self-petitioners, special immigrant juveniles, TPS applicants, registry applicants, people under the Cuban Adjustment Act, and Afghan and Iraqi allies. If you fall in one of these categories, the ground does not touch you.

How the officer decides

The officer weighs five factors in the totality of the circumstances: age, health, family status, assets and resources and financial status, and education and skills. As the rule puts it, “there is no ‘bright-line’ test.” DHS reads “likely” to mean “more likely than not.”

No single factor decides the case, with one exception. If the law requires an Affidavit of Support (Form I-864) and you do not file a sufficient one, you lose. As the rule states, no one factor is outcome determinative “except for the lack of a sufficient Form I-864 when one is required.” That is the only automatic denial in the scheme. Everything else is weight.

The fact that an alien has been on welfare does not, by itself, establish that he or she is likely to become a public charge.
Matter of Perez, 15 I&N Dec. 136 (BIA 1974)

The bond, with new teeth

The rule revives a tool that has sat mostly idle since 1996. If USCIS finds you inadmissible only on public charge, it may invite you to post a public charge bond. It comes by invitation, through a Notice of Intent to Deny, and you post it on Form I-945. The floor is $1,000. The amount tracks the benefits USCIS projects you will draw over five years.

Applicant Per year Five-year estimate
Adult with children $8,400 $42,000
Adult without children $10,686 $53,430
Child $5,640 $28,200
Long-term institutional care $109,860 —

If the projected value tops $100,000, that cuts against offering a bond at all. And the bond breaks the moment the person takes a single means-tested benefit while it is in force.

Is it legal

Mostly, yes. That is the honest read, and it is worth saying plainly.

The authority is real. The ground is statutory. The five factors are Congress’s, not the agency’s. The statute lets the officer decide “in the opinion of,” which the Board long ago called a grant of discretion that puts close calls past easy review. Older decisions already let officers count past receipt of public benefits as one factor among many.

DHS knows the objection is coming and answers it in the rule. It puts forward “no definition of the term ‘public charge,'” so there is nothing for a court to strike as an overreading. It calls the change an exercise of “the explicit discretionary authority Congress delegated to the Secretary,” not “an exercise of unchecked power… contrary to congressional intent.”

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), ended the reflexive deference courts once gave agencies reading their own statutes, and the rule concedes as much. A court will not wave this through on the agency’s say-so. But the government is not asking for deference. It reads an old term the way the statute and the old cases already read it. Several circuits, the Seventh among them, have taken up the meaning of “public charge” over the years without landing in the same place. The Fourth Circuit, in CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020), read the statute to grant the executive “extensive and ultimate discretion” over these calls. That cuts the government’s way.

The 2019 version of this rule was struck down, but it failed on how it was built, not on the power to weigh benefits. This rule is built more carefully. It weighs everything in the totality of the circumstances and lets no single benefit decide. That is a harder target.

Expect lawsuits. Do not expect a quick win.

The cases that will do the work

The fight will run through decisions that already exist. Matter of Perez, 15 I&N Dec. 136 (BIA 1974), holds that being on welfare, standing alone, does not make you a public charge. That is the applicant’s anchor. Matter of A-, 19 I&N Dec. 867 (BIA 1988), makes the test the totality of the circumstances and treats past receipt as a factor, not a verdict, which is where the government leans to weigh SNAP and Medicaid at all. Matter of Harutunian, 14 I&N Dec. 583 (Reg’l Comm’r 1974), and Matter of Vindman, 16 I&N Dec. 131 (Reg’l Comm’r 1977), let age, an inability to work, and cash aid tip a case toward inadmissible.

The form changes on the same day

The rule brings a new form. On September 18, 2026, USCIS publishes a revised Form I-485, edition date 09/18/26, and it replaces the 01/20/25 edition. Most of the form is the same. The public charge part, Part 9, is not.

The old form asked two questions, one about cash assistance and one about long-term institutional care. The new form folds them into one: “Have you ever received any means-tested public benefit?” It replaces the two old disclosure tables with a single table and adds a free-text “Reason” column for each benefit you list. It drops the household-size number and asks you to describe your family status in your own words, and it adds questions on household income, assets, liabilities, education, and workforce skills.

The instructions lost weight too. The old instructions spent pages explaining what counted and what did not, and named SNAP, WIC, CHIP, school lunch, housing, and childcare as benefits that did not count. That explanation is gone. The form now sends you to USCIS’s online guidance instead. One piece of relief: the instructions say you generally do not file public charge evidence up front unless USCIS asks, and USCIS can issue a Request for Evidence if it wants more.

No grace period

This is a hard cutoff. File before September 18 and you must use the 01/20/25 edition. File on or after, and you must use the 09/18/26 edition. Send the wrong one and USCIS rejects it. A rejected I-485 comes back unfiled. It does not hold your filing date. For someone whose case turns on a current priority date, on staying in status, or on a child’s age under the Child Status Protection Act, a rejection over a form edition can cost far more than the days it takes to refile. Check the edition date before you file.

USCIS has posted a preview of the new edition and its instructions in the Special Instructions section of its Form I-485 page: uscis.gov/i-485.

What to do before September 18

If you can file the I-485 before September 18, 2026, file it. Use the current 01/20/25 edition and get it in before the date. The old narrow rule then governs your whole case.
Benefits you received before September 18 mostly will not hurt. Only cash welfare and long-term care from that window count.
Watch benefit enrollment for anyone you are legally obligated to support. Their receipt can bear on your finances even when it is not charged to you.
Line up a strong I-864. A missing or thin one is the only automatic loss in the process.
Build the record that helps: steady income, work history, private health insurance that is not a public benefit, education, and skills.

Where it goes next

The government widened the net with tools it already had. The authority holds up. The cost lands on ordinary families who used ordinary help, and now watch that help turn into evidence. The rule takes effect September 18, 2026. Litigation will follow, and the effective date will hold while it does. Plan around the calendar and the paperwork, not around a court order that may never come.

Read the USCIS policy alert (PDF)

This post is general information, not legal advice, and does not create an attorney-client relationship. Every case turns on its own facts. For advice on your situation, consult a licensed immigration attorney. Law Offices of Michael D. Baker.

Posted in Adjustment of Status, immigration history, Poverty Guidelines | Tagged , , , , , , , , , , , | Leave a comment

The Board Cuts the Right to Counsel Down to Ten Days

Posted on August 15, 2026 by Mike Baker

In Matter of A-K-R-, the BIA holds that a single ten-day cushion is the only hard time the statute owes you to find a lawyer. Everything after it is a favor.

By Michael D. Baker

A detained man from India told an immigration judge he feared torture at home. No lawyer. No money. No way to pull his documents out of detention. The judge gave him two weeks, then two more, then ordered him removed. On August 14, 2026, the Board of Immigration Appeals said the judge broke no rule. Matter of A-K-R-, 29 I&N Dec. 839 (BIA 2026).

The decision reaches every crowded docket in the country. It holds that the only firm time the statute owes a noncitizen to find counsel is the ten-day gap between the charging paper and the first hearing. INA § 239(b)(1), 8 U.S.C. § 1229(b)(1). After that, more time is a favor, not a right. And the Board erased the 2012 precedent that told judges to give people a real chance to lawyer up first. The mega-master machine has been banking on the unrepresented to trip. The Board just handed it the legal cover.

What happened to the man in this case

DHS served the notice to appear on January 8, 2026, and detained him the same day. His first hearing came twenty-six days later. The judge read the standard advisals and gave two weeks to find counsel or file for relief. At the next hearing the man asked for more time. The judge gave two more weeks and a warning: bring a lawyer or represent yourself, because the continuances stop here.

He came back with no lawyer and admitted the charges. When he said he feared return to India, the judge told him he might qualify for withholding of removal or protection under the Convention Against Torture, and set a filing deadline. He missed it. He could not get the documents. He had no funds, no one outside detention to help, and not enough schooling to complete the form alone. The judge denied one last continuance and ordered him removed. He was pro se the whole way. He is exactly the person the mega-master docket is built to catch.

What the Board held

Start plain. A judge may grant a continuance for good cause. 8 C.F.R. § 1003.29; Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983). A noncitizen holds the privilege of counsel of their choice, at their own expense. INA §§ 240(b)(4)(A), 292. Congress protected that privilege two ways: the notice to appear must name the right and list pro bono lawyers, and the first hearing cannot come sooner than ten days after service. INA § 239(a)(1)(E), (b)(1). Once those ten days pass, the statute lets the government proceed against a person who still has no lawyer. INA § 239(b)(3).

Now the move. In 2012 the Board said a judge must give a “reasonable and realistic period of time” to find counsel. Matter of C-B-, 25 I&N Dec. 888 (BIA 2012). The Board withdrew that line as a mandate. Chief Appellate Immigration Judge Malphrus wrote for the panel, joined by Appellate Immigration Judges Hunsucker and Chaban, and called the standard unsupported, untethered from the text, and dicta. What is left is the floor. Ten days, and nothing more.

Applied here, the answer comes fast. First hearing at twenty-six days. Two continuances. The statute was met, and the man never showed good cause for a third. The Board added that the Fifth Circuit, where the case arose, only assumes a possible Fifth Amendment due process right to counsel. Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2006). It did not decide that question. It cut the statutory protection and left the constitutional one untouched.

What this actually does

The working rule: once the ten-day floor is met, a noncitizen has no statutory right to more time to find a lawyer. Every further continuance rides on good cause, reviewed for abuse of discretion.

Before A-K-R- (the C-B- world) After A-K-R-
Judge must allow a reasonable, realistic period to find counsel. Judge must honor only the ten-day floor before the first hearing.
Denying real time to find counsel was itself a statutory violation. Denying more time is judged only as a good-cause call.
Counsel-continuance requests carried a thumb on the scale. They stand like any other continuance request.
Circuit courts leaned on the BIA standard to reverse removals. The agency pulled that standard out from under them.

The speed machine

IIRIRA built this in 1996. It wrote § 239, the ten-day floor, the pro bono list, a promise of counsel bolted to a fast track into court. Every administration since has fed the fast track and starved the promise. Dockets swelled. Completion quotas landed. The 2012 C-B- gloss ran the other way and told judges to slow down for counsel. The Board just deleted it.

Look at what the deletion serves. The Justice Department now packs more than a hundred people before a single judge in “mega master” hearings, moves dates up by weeks, and orders removal for anyone who shows up late, misses the roll call, or never had a lawyer. I wrote about that machine here. The design runs on the unrepresented. A-K-R- is the doctrine it was missing. It tells the judge the clock can run out on counsel after ten days and the record will still hold. The statute never bent for the docket. Now the Board has bent for it.

The collision the Board walked into

Twelve weeks earlier, the Fourth Circuit used the very language the Board just cut. In Rodriguez-Solis v. Blanche, 177 F.4th 266 (4th Cir. 2026), a lawyer of more than a decade withdrew weeks before an asylum merits hearing. The judge refused a continuance for new counsel and made the woman go it alone. The majority held that denying her a reasonable and realistic period to secure counsel violated her statutory privilege, and sent it back for a prejudice finding.

Judge Quattlebaum dissented. Complying with the statute, he wrote, is “all that is necessary to safeguard an alien’s privilege of counsel.” The Board quotes that dissent and adopts it.

So the agency took the losing side of a published opinion and made it national policy, three months after the fact. Inside the Fourth Circuit, Rodriguez-Solis still binds; the Board cannot overrule a court’s reading of the statute there. Everywhere else, a protective circuit ruling and the agency’s new rule now point in opposite directions. That tie goes up.

7The Seventh Circuit angle

For those of us in Chicago, the question is what changes here. The Seventh Circuit reviews continuance denials for abuse of discretion, and it does not rubber-stamp. In Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), the court demanded a reason grounded in the statutory scheme, not the calendar. In Cadavedo v. Lynch, 835 F.3d 779 (7th Cir. 2016), it applied the Board’s good-cause factors and asked whether the relief sought was real.

A-K-R- takes away the argument that the judge had to give time for counsel. It leaves the demand for a reasoned denial standing. Whether this circuit drifts toward the searching review of the First and Fourth or the deference of the Fifth and Sixth is open. Preserve the issue as if it decides the case, because here it still can.

The fatal flaws

  1. It reads the privilege down to a formality. The statute calls counsel a privilege and makes you pay for it. Fine. A privilege you cannot use is a privilege on paper. Two weeks in a cell, no money, a call list that rings out, that is the reality the floor pretends away.
  2. It calls the C-B- language dicta. A federal court did not treat it that way this spring. The Board sided with a dissent against a published majority and called it housekeeping.
  3. It shrinks the statutory floor and leaves the constitutional one blank. The panel notes the Fifth Circuit only assumes a Fifth Amendment right. A-K-R- does not decide it. Less statute, undefined constitution.
  4. It blames a detained man for the docket’s result. Footnote 2 says a lone asylum applicant needs almost no documents. Maybe. The decision reads a detained, unschooled, pro se man’s failure to file as his own fault, not as the predictable yield of detention and speed.

Now the honest part. C-B- did float free of the statute, and the decision does kill real stall tactics. Every judge knows the game, and this ends some of it. The housekeeping is fair. The timing is not. You pull the brake in the exact season the system runs hottest and holds the most people, and you make counsel hardest to use precisely when it decides the case.

Practice advisory

DangerDetained pro se clients run on a hard clock. Once the ten days pass, every extra day is discretionary. Assume the judge proceeds without you and build around it.
Build the recordVague loses. A-K-R- faults the man for showing no diligent steps. Put the diligence on the record: attorneys called, dates, retainers pending, documents requested, the exact wall detention built. Detail reads as good cause. Generality reads as delay.
File something on timeA timely, signed I-589, even skeletal, beats an abandonment finding and saves the claim. A perfect application filed after removal is worth nothing. File, then supplement.
Preserve for appealState the objection on the record: statutory privilege, due process, prejudice, relief sought. In the First, Fourth, Seventh, and Ninth Circuits, review may run deeper than the Board’s new rule assumes.

What to do now

  1. Triage detained cases by hearing date. Flag anyone past the floor without counsel.
  2. Put the EOIR pro bono list in the client’s hand the same day. Document it.
  3. File a timely I-589 to block abandonment, bare bones if you must.
  4. Paper the diligence in real time. Every call, every document request, dated.
  5. Make the objection on the record: privilege, due process, prejudice, relief.
  6. Track the split. Rodriguez-Solis holds the Fourth. The Board’s rule cuts the other way where the question is open.
The verdictThe Board dismissed the appeal and rewrote the floor. Ten days before the first hearing is the whole hard guarantee for counsel. The “reasonable and realistic period” from Matter of C-B- is gone as a mandate. Continuances live or die on good cause now. Matter of A-K-R-, 29 I&N Dec. 839 (BIA 2026).

In a slower season this reads as tidy doctrine. Right now it reads as a green light. The Fourth Circuit protected the right to counsel this spring. The Board cut it in August. The machine keeps running while the courts decide who was right.

Download the decision (PDF)

This post is legal commentary, not legal advice, and does not create an attorney-client relationship. Immigration law changes quickly and applies differently to each set of facts. If you or someone you know faces removal proceedings, consult a licensed immigration attorney about your specific situation.

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