DHS Corrects Rule Allowing Asylum Referrals to Immigration Court Without Interview

The Correction and Underlying Rule

The Department of Homeland Security published a correction in the Federal Register on August 31, 2026, to rule document 2026-15190, which originally appeared beginning on page 47101 in the issue of Tuesday, July 28. The correction, designated C3-2026-15190, notes that due to technical issues, documents numbered C1-2026-15190 and C2-2026-15190 do not exist. The correction itself addresses only Table 3 — the Summary of the Cost and Benefits of the Rule — on page 47119 of the original document.

The underlying rule amends 8 CFR Part 208, which governs affirmative asylum procedures, to allow an asylum officer (AO) to refer an affirmative Form I-589 application to the Executive Office for Immigration Review (EOIR) without first conducting an interview, based on the record and other relevant evidence. The rule removes language stating that an AO "in an interview" shall review the application and give the alien the opportunity to present relevant and useful information. It also adds 8 CFR § 208.9(a)(2), amends 8 CFR § 208.10 to remove language referring to the "right to an" interview, and updates 8 CFR § 208.14(c) to include that an AO can refer an asylum application to EOIR without offering an opportunity for an interview. Additionally, the rule amends 8 CFR § 208.19 to remove the requirement that a referral letter include an assessment of the alien's credibility, and amends previous agency practice so that an AO may refer an application as a matter of discretion without first making an eligibility determination — a change made without an alteration to a regulatory provision.

Stated Benefits

The rule's cost-benefit table, as corrected, enumerates benefits to both applicants and the government. For applicants, the rule states benefits including reduced wait times and faster case resolution at USCIS for both meritorious claims and referrals, earlier clarity and less time in legal uncertainty, faster access to long-term protection and family reunification, better preservation of evidence, earlier work authorization for aliens who are approvable, earlier access to INA 240 removal proceedings, earlier access to procedural protections, and reduced procedural redundancy. The rule also states applicant-facing informational benefits: explaining that an interview may not be offered for all cases, greater awareness of the need to submit all evidence in support of an application at the time of filing, improved application quality and completeness, and that aliens will be better prepared for the asylum process.

For the government, the rule states benefits including increased operational efficiency and reduction in USCIS's affirmative asylum backlog, time and resource savings in AO time, interpreter resources, and administrative support that could be reallocated to other priority caseloads, more efficient adjudications especially in cases where aliens clearly fail to meet their burden to establish eligibility, reduced duplicative work for USCIS and EOIR, flexibility to issue future policy guidance about which categories of cases should be prioritized for referral without interview, the ability for AOs to focus a decision letter on the basis for referral where credibility is not the basis, and more efficient drafting of referral decision letters. The rule also cites improvements to national security and public safety, stating that the change would accelerate adjudication and reduce the amount of time that potentially dangerous aliens remain in the community, and reduce the number of in-person encounters in USCIS facilities for ineligible applicants.

Stated Costs

The corrected cost-benefit table also enumerates costs. For applicants, the rule identifies the possibility of increased wait times and slower case resolution for some aliens who under the previous process would have been granted asylum by USCIS. For the government, the rule identifies possible costs to DOJ to develop certain elements of a case during removal proceedings where USCIS no longer performs an interview, and possible new costs to DOJ for processing referred asylum cases that USCIS could have granted under the prior framework.

What to Watch

The correction applies specifically to Table 3 on page 47119 of the July 28 original rule. The underlying rule document 2026-15190 remains operative as originally published, with the corrected table now incorporated via this August 31 notice. No additional deadlines or comment periods are stated in the correction document.

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