USCIS Can Now Send Affirmative Asylum Cases to Immigration Court Without an Interview

An interim final rule, "Affirmative Asylum Referrals Without Interview" (91 Fed. Reg. 47101), took effect July 28, 2026 and is in force now. It adds 8 CFR 208.9(a)(2), which permits an asylum officer to refer an affirmative Form I-589 to an immigration judge "without conducting an interview, based on a review of the record... and other relevant evidence." The rule allows a referral without interview 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." A related change to 8 CFR 208.19 now requires that a letter include an assessment of the applicant's credibility only "for denials" — not for referrals. USCIS has said it still offers an interview before granting or denying asylum; the practical effect for an applicant who has no other lawful status is that the case can be sent to immigration court, an adversarial forum, without the non-adversarial USCIS interview that regulations previously provided. The rule was issued without advance notice and comment, and the public comment period runs through Sept. 28, 2026. It is being challenged: on Aug. 19, 2026, four legal services organizations filed Immigration Equality v. Mullin, No. 1:26-cv-02921 (D.D.C.), raising three Administrative Procedure Act claims. Importantly, no temporary restraining order or preliminary injunction has been sought or entered in that case, so the rule remains fully in effect while the litigation proceeds. The practical takeaway has not changed but now matters much more: treat your initial affirmative asylum filing as your complete case, with all supporting evidence and declarations included at the time of filing, rather than assuming there will be an interview where you can explain or supplement it. If you have an I-589 on file or are preparing one, ask us to review what is actually in your record.