Hundreds of Cubans with form I-220A are being sent directly to immigration court without undergoing an interview with an asylum officer, and many of them were unaware that they had a Notice to Appear (NTA) pending since they crossed the border.
This is warned by immigration lawyer Liudmila Marcelo in an interview for CiberCuba conducted by Tania Costa, where she explains the practical consequences of the new federal rule 91 FR 47101, effective from July 28, 2026.
Marcelo distinguishes between two situations that, although they seem similar, have very different legal consequences. The first involves Cubans with I-220A who indeed had a pending NTA, even if they were unaware of it: "These Cubans with I-220A who were without a court date still had a hidden NTA because they entered through the border," the lawyer explained.
In those cases, when the Citizenship and Immigration Services (USCIS) sends the NTA to the judge, the change of jurisdiction is legally correct: "Once the judge receives the NTA, an NTA that this person has known about since their entry, it of course changes jurisdiction; it is no longer under USCIS jurisdiction, it is under the court's jurisdiction."
The real problem, according to Marcelo, lies in the second group: people who have no NTA at all and who, under the new rule, are also referred to court without a prior interview.
"These people who do not have an NTA, these people who at that moment were not in any danger of being placed in court, who had the opportunity to defend their asylum before an asylum officer and were not undergoing a removal process in court, well that person is now... USCIS is saying no, that they will simply not consider it and that everyone will end up in court," he noted.
For the lawyer, that constitutes a direct violation of the law: "And there is the violation. In other words, the administrative process is being completely violated." Marcelo recalls that affirmative asylum—filed by someone who does not have active removal charges—must be resolved by USCIS through an interview, not before an immigration judge.
The new rule breaks that fundamental distinction between affirmative and defensive asylum established by section 208 of the Immigration and Nationality Act.
The attorney also reports that the phenomenon is not new: "For many days, many months we have been seeing a trend from USCIS," and adds that she has received "many, many, many people who did not have a court date and are now being given one."
That trend, which had been effectively applied, is now formalized in the new federal regulation.
Marcelo also clarifies an important distinction for Cubans with parole: those with parole marked in the second box are under the jurisdiction of the court to obtain residency, while those marked in the first box are under the jurisdiction of USCIS.
The rule 91 FR 47101 opens a 60-day public comment period that ends on September 28, 2026, and immigration lawyer organizations expect it to face lawsuits.
Meanwhile, Cubans with I-220A have reported massive advancements in hearings, with cases that were scheduled for 2028 and 2029 being rescheduled to immediate dates, leaving many without enough time to prepare their defense.
For those who already have another eligible immigration route, such as Cuban parole, Marcelo advises consulting with a lawyer about the possibility of withdrawing the pending asylum application before the case is transferred to court.
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