A new rule from the U.S. Department of Homeland Security (DHS) will let federal officers refer asylum applicants directly to an immigration court, without first interviewing them to allow them to make their case for being allowed to remain in the U.S.
The interim final rule, which means it’s being implemented in advance of public comment, is set to take effect Tuesday.
"In order to reduce the affirmative asylum backlog, improve efficiency of operations, safeguard national security and public safety, and ensure consistency with agency priorities, USCIS [U.S. Citizenship and Immigration Services] will no longer offer interviews to all affirmative applicants prior to referral to EIOR [the Executive Office for Immigration Review]," the rule states. "Through the rule, USCIS is also able to more quickly identify aliens that pose a danger to public safety or national security and place those aliens in removal proceedings, where his or her claim for asylum or other forms of relief can be more appropriately heard in an adversarial hearing by an IJ [immigration judge]."
Asylum seekers are immigrants who have left their home countries and formally applied for legal protection, typically due to persecution or threats to their physical safety from war, violence or a reasonable fear of being hurt or killed.
Rehan Alimohammad, professor of practice at the University of Houston Law Center's Immigration Clinic, said that pretrial interview is designed to give asylum applicants an opportunity to explain their circumstances in a non-adversarial setting.
"Now, with this rule, they’re not going to get that opportunity anymore, and it’s going to just be sent to an immigration judge," Alimohammad said. "And an immigration judge can pre-terminate the case just by looking at the application and saying, ‘Well, you didn’t answer this question completely, so I’m denying your case without even a hearing.'"
The most recent available estimates, from December 2023, put the immigration court backlog of asylum seekers in Texas at more than 102,600. Houston immigration attorney Gordon Quan argued the new rule will only make that backlog worse.
"To me, it’s robbing Peter to pay Paul," Quan said. "Instead of these cases going to the asylum officer and being reviewed, they’re going to be dumped on the immigration court, which is already backlogged."
Quan and Alimohammad both said the new rule would effectively deny asylum seekers due process and increase the chances they would ultimately be deported.
"The faster they can get you into court, the faster they can get you removed, the faster they can put you out of the country," Quan said.
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In a news release about the rule change, USCIS said the current system “essentially allows an alien to get a second chance at asylum.”
"For far too long the asylum system has been exploited for purposes of delay and work authorization, not legitimate claims of protection," USCIS Director Joseph Edlow said in the news release.
While the new rule is taking effect this week, there is evidence the Trump administration has been engaging in the practice of referring asylum seekers to immigration court without first interviewing them for several months, according to Houston immigration attorney Ali Zakaria. He said the rule provides the administration with legal cover for actions it was already taking.
"I do know there might have been one or two lawsuits or motions filed because ... the asylum officer didn’t have the authority to transfer the files without an interview directly to immigration court," Zakaria said. "But now they do.”
Zakaria said the people most likely to be affected by the rule change are those who face the loss of Temporary Protected Status due to an end-of-term U.S. Supreme Court ruling — particularly individuals from Venezuela, Haiti and several African countries.
"I think the system as we knew it prior to Trump coming into the office, whether it was the ability to vote [or] whether it was the ability to seek immigration status, all of that has changed or is changing," Zakaria said. "And I think by the time he’s done, we may not recognize the country we live in."
Houston Public Media’s Bianca Seward contributed to this report.
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