At the end of FY 2025, USCIS had a backlog of 1.4 million-plus pending “affirmative asylum” applications that were taking an average of 7.3 years to process, but as my then-colleague Elizabeth Jacobs reported in late July, the agency has published an interim final rule (IFR) that enables the agency’s asylum officers (AOs) to refer without interviews applications filed by aliens who aren’t eligible for asylum to immigration judges (IJs) to handle. USCIS could go further, but this is a good start because what had been an administrative logjam is about to become an immigration court pipeline. That said, it would have been better if the rules had been changed 32 years ago, when this fix was first proposed.
“Affirmative Asylum”
Under section 208(a)(1) of the Immigration and Nationality Act (INA), any alien “physically present in the United States or who arrives in the United States ... irrespective of such alien's status, may apply for asylum”.
That’s pretty broad in its sweep, though it should be noted that immigrants’ advocates tried to expand this already expansive provision to include aliens on the other side of the border, too, before the Supreme Court shut them down in its June opinion in Mullin v. Al Otro Lado.
When Congress added section 208 in the Refugee Act of 1980, it never said where those aliens could “apply for asylum”, only that they may do so, and it wasn’t until a decade later that DOJ — which at the time oversaw both the Adjudications section of the then-Immigration and Naturalization Service (“INS”, the predecessor to USCIS) and the immigration courts — formalized asylum adjudications.
IJs had long adjudicated protection claims in “exclusion” and “deportation” proceedings and continued to do so after the passage of the 1980 act, but in 1990, INS established what was then known as the “Asylum Corps”, a team of specially trained immigration officers to adjudicate applications filed by aliens who weren’t in exclusion or deportation proceedings.
By 1992, more than 100,000 aliens had filed what are known as “affirmative asylum applications” (to distinguish them from “defensive” claims in proceedings before IJs) with INS, at which point the agency had about 150 AOs stationed in seven asylum offices (Los Angeles, San Francisco, Chicago, Newark, Arlington, Miami, and Houston) around the country to adjudicate them.
Exclusion and deportation proceedings were merged and replaced in 1996 by a new procedure, “removal proceedings” under section 240 of the INA, and IJs continue to consider defensive asylum claims in those proceedings.
AOs still handle affirmative asylum, too, and regulations at 8 C.F.R. § 208.9 govern how they do it. Most saliently, subsection 208.9(b) directs officers to conduct asylum interviews “in a nonadversarial manner and, except at the request of the applicant, separate and apart from the general public”.
“Nonadversarial” in that context means that while the alien can have counsel present, there’s no separate government attorney to cross-examine the alien or offer contradictory or impeachment evidence — key protections to deter fraud in immigration court proceedings.
“Two Bites at the Apple”
Aliens granted affirmative asylum receive permanent asylum status and are placed on a path to a green card and then citizenship without ever setting foot in immigration court, while removable aliens not granted asylum by AOs are “referred” to removal proceedings before IJs to seek asylum once more (this time defensively) there.
As UVA Prof. David Martin explained in a 1995 law review article, this “feature” — an affirmative asylum application denied by an AO before being reconsidered de novo as a defensive one by an IJ — “led to considerable grumbling about an overly layered administrative system, the so-called ‘two bites at the apple’”.
A proposed March 1994 rule would have amended the regulations to give AOs discretion to dispense with interviews before referring certain aliens’ claims to IJs to focus on more meritorious claims, but that reform was omitted from the final version of the rule in December 1994, in part based on the belief that INS “streamlining” goals could be met without it, and interviews remained mandatory for all applicants.
The Bars to Applying for — and Being Granted — Asylum, and Deadlines
Section 208 of the INA is written uniquely: Notwithstanding the broad sweep of section 208(a)(1) of the act, other provisions therein bar specified aliens from applying for asylum and then also preclude adjudicators from granting it to certain other applicants.
Under section 208(a)(2) of the INA, aliens are barred from applying for asylum if they could be sent to a “safe third country” where they would not be subject to persecution, if they failed to apply for asylum within one year of arriving in the United State, or if they previously applied for and were denied asylum.
The latter two bars to asylum, however, are subject to their own exceptions at section 208(a)(2)(D) of the INA, under which aliens otherwise barred may seek protection if they demonstrate either “changed circumstances” that “materially affect” their asylum eligibility or “extraordinary circumstances relating to the delay in filing an application”.
Other aliens — most prominently persecutors, aggravated felons, other specified criminals, and terrorists — are eligible to apply for asylum under section 208(a)(2) but are ineligible to be granted it under section 208(b)(2)(A) of the INA.
Congress also placed deadlines on adjudications of asylum applications, both affirmative and defensive.
In section 208(d)(5) of the INA, absent undefined “exceptional circumstances”, Congress has stated that “the initial interview or hearing” for an asylum application “shall commence not later than 45 days after the date an application is filed” and a “final administrative adjudication of the asylum application” must “be completed within 180 days after the date an application is filed”.
“Affirmative Asylum Referrals Without Interview”
Which brings me to the latest IFR, which was published in the Federal Register on July 28 and captioned “Affirmative Asylum Referrals Without Interview”.
First, it turns out that the December 1994 projections about AOs being able to meet their goals while still conducting interviews in every affirmative asylum case were a bit too optimistic.
As per the IFR — and likely because there are now roughly 1.4 million affirmative asylum applications pending at USCIS — “individuals seeking asylum may wait over 7.3 years for resolution” of their claims — well more (about six years, eight months, and 15 days more) than Congress mandated.
Second, many aliens in the USCIS queue filed their affirmative asylum applications after the one-year deadline in section 208(a)(2) of the INA.
As of December 2025, according to the IFR, more than 444,000 applications then pending with USCIS were filed more than one year after the alien arrived in this country or have a blank entry date, and nearly 130,000 of those were filed 10 years or more after the alien entered or have a blank entry date.
Again, there are exceptions to that one-year bar, and many of those hundreds of thousands of applicants may have good reasons for their tardiness, but at some point the existing USCIS asylum scheme looks less like an avenue for aliens fleeing real peril to find refuge and more like a way for them to game the system to remain here (and receive work permits and Social Security numbers).
As Jacobs explained, “This lengthy period of authorized presence [pending USCIS adjudication of an affirmative asylum application] can itself become a significant incentive to file an asylum application, even when an applicant is unlikely to qualify for asylum.” More true words have rarely been uttered, though I would have omitted the modifiers.
The rule attempts to eliminate these perverse incentives and break the USCIS asylum logjam by allowing — not requiring — AOs to refer claims made by any alien who 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” without first interviewing that alien, based simply on the written record.
That’s what the INS should have done 32 years ago, but then it’s not the first mistake that agency made that DHS has been forced to subsequently clean up, and it likely won't be the last.
“Due Process” Concerns
USCIS has already received more than 2,260 comments on the new rule, and more than a few of them complain that the amended regulation will deprive affirmative asylum applicants of their “due process” rights.
Consider, for example, the following comment posted by “Anonymous”:
Asylum is about protecting people who may face persecution or serious harm. Referring cases without giving applicants a meaningful chance to be interviewed can undermine fairness and due process. Every person seeking protection deserves the opportunity to be heard, have their evidence considered, and receive a fair and humane process.
Personally, I largely agree with the first sentence (asylum is about protecting deserving aliens, but not about shielding others who simply want to avoid removal) and the last one is more or less what the law already requires. The one sandwiched in the middle, however, has no basis in law or fact.
Again, Congress in section 208 of the INA never states how asylum applications are to be adjudicated, but rather simply requires the executive branch to provide aliens an “interview or hearing on the asylum application” — “an interview or a hearing”, not “and a hearing” — within certain timeframes.
And as for the constitutional “due process” protections, as the Ninth Circuit has succinctly explained:
Where an alien is given a full and fair opportunity to be represented by counsel, prepare an application for ... relief, and to present testimony and other evidence in support of the application, he or she has been provided with due process.
An asylum applicant will receive the “opportunities” due process requires regardless of whether the adjudicator is an AO in a “nonadversarial interview” or an IJ in removal proceedings, with the extra protection for the interests of the American people in the latter that an ICE trial attorney who can cross-examine the alien and present contrary evidence (and appeal an erroneous grant) will bring.
Time for a Change
As Jacobs explained, even though this is an “interim final rule”, DHS is nonetheless soliciting public comments “before deciding whether to finalize the regulation”, and if anyone wants to file one, they can submit it at Regulations.gov under DHS Docket No. USCIS-2026-0199 on or before September 28, 2026.
The Center submitted its regulatory comment on September 15, if you are interested in finding out more about this rule, but one of the points we made is that USCIS likely didn’t go far enough.
Specifically, the Center argued that, given its massive and likely insurmountable backlog of 1.4 million affirmative asylum applications, USCIS should refer all aliens who are removable — any who came illegally, any who overstayed their permitted admissions on nonimmigrant visas, and any others — to removal proceedings.
For now, this interim final rule is a reasonable fix: It will eliminate the administrative delays aliens have exploited by filing for asylum with USCIS simply to remain and work here indefinitely and speed review of legitimate claims, without denying any alien due process — and without giving them a “second bite at the apple” Congress never intended.