The American Immigration Council is a non-profit, non-partisan organization. The Trump administration has taken another significant step toward restricting access to asylum in the United States. At the same time, it has moved to end protections such as Temporary Protected Status (TPS), increasing the risk that many will be deported to countries where they may face persecution. For many, asylum is the only remaining protection against being returned to harm. But the administration’s latest effort would make that protection harder than ever to obtain.
On July 28, U.S. Citizenship and Immigration Services (USCIS) published an interim final rule giving its asylum officers the authority to forego providing applicants an interview before referring their application to an immigration judge, including for already pending cases. For decades, an asylum interview has been a cornerstone of the affirmative asylum process. Every person seeking asylum had the opportunity to explain their claim directly to a specially trained asylum officer in a non-adversarial setting.
Under the new rule, that presumption no longer exists. Instead, USCIS may summarily decide that an applicant is ineligible for asylum and refer the case directly to immigration court for an adversarial proceeding in the case without ever speaking to the applicant.
Although the administration frames the rule as an efficiency measure to reduce USCIS’ affirmative asylum backlog, the rule further enables the government to push asylum claims quickly through the immigration system, likely leading to increased negative outcomes. USCIS says applicants can still present their cases to immigration judges, but, over the past year, the administration has made that process faster, including by expanding the summary dismissal, or pretermission, of asylum applications before applicants can fully present their claims.
The importance of an asylum interview
Many asylum seekers have experienced trauma, fled under dangerous circumstances, or come from countries where documentation is difficult or impossible to obtain. Asylum officers receive specialized training to conduct interviews that help applicants explain inconsistencies, clarify timelines, and describe the persecution they experienced. Interviews also allow officers to assess credibility, ask follow-up questions, and identify facts that may not appear in a written application. This is important as asylum seekers may have difficulty recollecting their experiences to an officer due to their past trauma.
The interview is one of the defining characteristics of the affirmative asylum process. Unlike immigration court proceedings, it is conducted in a non-adversarial setting. Rather than arguing against the applicant, the asylum officer’s role is to gather information and determine whether the applicant qualifies for protection under U.S. law.
The new final rule falsely suggests that foregoing this requirement would have minimal impact because the asylum applicant would still have an opportunity to present their case before an immigration judge. Immigration court hearings are adversarial, where the government is represented by trained attorneys and most noncitizens go unrepresented because they are unable to afford one. Since last January, the administration has moved to rescind federal payments to nonprofits providing much of the free or low-cost legal help to immigrants that has existed in recent years, including representation to unaccompanied children.
Deciding complex cases without ever speaking to the applicant
The rule authorizes USCIS to bypass interviews for broad categories of applicants, including where the applicant is not in lawful status, has not already been scheduled or received an interview, and the asylum officer determines the person:
- Is barred from applying for asylum.
- Is barred from a grant of asylum.
- Does not merit a grant as a matter of discretion.
- Is not eligible on the merits.
Many of these determinations involve highly technical legal questions rather than straightforward factual findings. For example, one category of individuals barred from applying for asylum includes applicants who filed for asylum more than one year after their most recent arrival in the United States. At first glance, this may seem like a simple deadline. In reality, the law contains numerous statutory and regulatory exceptions.
Individuals who maintained lawful immigration status before applying, experienced changed circumstances, or faced extraordinary circumstances may still qualify despite filing after one year. USCIS estimates that 132,167 asylum applications will be referred annually in the future without an interview.
USCIS also identified as many as 444,724 pending applications that could potentially fall within this category (but, highlighting the nuance here, USCIS’ estimate also includes people who left their entry dates “blank”). That figure includes many individuals who were previously paroled into the United States, including Afghans and Ukrainians, who may have not applied for asylum within a year because they believed they would receive other protections or that circumstances in their home countries would change.
The agency states that it is reviewing which pending cases can be referred without an interview based on the current record, but that it may issue requests for evidence in certain cases or otherwise issue web-based reminder alerts. It also suggests applicants could “supplement” the record on their own if they “feel like” they need to submit more information to meet their burden.
Another change could significantly shift asylum processing by allowing USCIS to refer cases to immigration court as a matter of discretion without first determining whether the applicant qualifies as a refugee. Previous guidance required asylum officers to make that statutory determination before a discretionary referral. This change appears to conflict with a Board of Immigration Appeals’ precedential decision holding that “the danger of persecution should generally outweigh all but the most egregious of adverse factors.” Without that finding, USCIS cannot properly compare other discretionary factors.
Shifting cases from USCIS to immigration courts
USCIS argues that eliminating interviews in some cases will improve efficiency and reduce its own backlog. But efficiency for one agency does not necessarily translate into efficiency for the immigration system. Rather than resolving applications within USCIS, the rule simply shifts the workload onto an immigration court system that is already struggling under a massive backlog and has fewer due process protections.
Today, approximately 72% of all pending immigration court cases involve asylum claims. Over the past year, the administration has increased efforts to close these cases, including by increasing pressure on judges to resolve cases more quickly by dangling the threat of firing over them; rapidly rescheduling large numbers of hearings into one “mega-master” hearing aimed at catching noncitizens off-guard and ordering them removed in their absence, and increasing the number of asylum applications immigration judges are pretermitting — or dismissing — without reaching the merits.
Taken together, these changes reflect a consistent policy by this administration of reducing opportunities for individualized review while emphasizing speedy negative outcomes and ultimate removal. In fact, in January, the White House praised that its administration had achieved the lowest asylum grant rates in decades.
Efficiency should not come at the expense of fairness
Reducing backlogs is an important policy objective. But the question is not simply how quickly cases move through the system—it is whether they are decided fairly.
The affirmative asylum interview has long served as a safeguard ensuring that applicants have a meaningful opportunity to explain their claims before facing removal proceedings. Eliminating that opportunity risks sending individuals with potentially meritorious asylum claims directly into an already overburdened immigration court system, where the process is more adversarial, more complex, and often far more difficult to navigate.
Viewed in isolation, the rule may appear to be a technical procedural change. Viewed alongside the administration’s broader immigration agenda, however, it represents another step in a fundamental transformation of how the United States evaluates — and increasingly restricts — access to asylum.
