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