Immigration attorney Liudmila Marcelo warned that a new USCIS rule published on July 28 violates the Immigration Law passed by Congress and removes a crucial protection for thousands of asylum seekers, including many Cubans.
The rule, identified as 91 FR 47101 and titled "Affirmative Asylum Referrals Without Interview," came into effect immediately and authorizes USCIS officials to refer certain affirmative asylum cases directly to the immigration court without first conducting the asylum interview that had been mandatory until now.
Marcelo explained in an interview conducted by Tania Costa that immigration law, specifically section 208 of the INA, recognizes two distinct types of asylum: affirmative and defensive.
"There are two types of asylum recognized in immigration law, under section 208 of the INA, established by Congress: defensive asylum and affirmative asylum," the attorney noted.
The affirmative asylum process is for those who do not have an active Notice to Appear (NTA) and are not under the jurisdiction of the Court, and it must be resolved by USCIS through an interview with an asylum officer.
The lawyer emphasized that this interview is a demanding process. "An affirmative asylum application involves an asylum interview in front of an asylum officer, which I have always said is a very detailed interview and can sometimes be even more stressful than the interview before the immigration court."
A fundamental difference, according to Marcelo, is the role of the lawyer at each stage. "In the asylum interview, everything is guided by the asylum office officer, and the lawyer is merely an observer to ensure that your rights are not violated, and in the end, they have the right to speak."
If USCIS granted affirmative asylum, the applicant could then proceed to apply for permanent residency; if it was denied, an NTA would be issued and the case would be referred to court, where the applicant would have a second chance through the defensive process.
The new rule eliminates that intermediate step for certain cases, which Marcelo described as a direct violation of the law. "This rule is currently going against what is stated in the immigration law enacted by Congress and therefore removes the distinction between affirmative asylum and defensive asylum."
The lawyer also noted that the regulation violates the Administrative Procedure Act, as it was published as a final provisional rule without the ordinary process of notice and comment prior to its implementation.
In that regard, Liudmila Marcelo specified that there are affected Cubans: those who have a pending NTA but have not yet been sent to court and filed for asylum with USCIS are now at risk of being referred directly to a judge without undergoing an interview.
In light of this situation, the attorney announced legal action. "Since it's so illegal and goes against immigration law, which is the governing law, as I always tell you, at any moment, a lawsuit will be filed against this order, if it hasn't already."
Marcelo advised those affected to stay informed and, in many cases, to consider withdrawing pending asylum applications if they already qualify for another eligible immigration pathway, such as Cuban parole.
USCIS justified the change as a measure to reduce the backlog in the affirmative asylum system and opened a 60-day public comment period, with a deadline of September 28, 2026.
The new rule adds to a series of immigration measures implemented in 2026, including the review of previously granted political asylums and the changes to public charge rules scheduled for September.
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