Immigration attorney Liudmila Marcelo has raised concerns over a newly implemented USCIS regulation, effective July 28, arguing that it contravenes immigration laws passed by Congress and removes a crucial protection for thousands of asylum seekers, including many from Cuba.
Immediate Impact of New Rule on Asylum Process
The regulation, known as 91 FR 47101 and titled "Affirmative Asylum Referrals Without Interview," took immediate effect. It allows USCIS officers to refer certain affirmative asylum cases directly to immigration court without the previously required asylum interview.
In a discussion with Tania Costa, Marcelo highlighted that immigration law, specifically Section 208 of the INA, distinguishes between two types of asylum: affirmative and defensive.
Understanding Affirmative and Defensive Asylum
"There are two types of asylum recognized by immigration law in Section 208 of the INA, created by Congress: defensive asylum and affirmative asylum," Marcelo stated.
Affirmative asylum applies to individuals without an active Notice to Appear (NTA) and not under court jurisdiction, typically resolved by USCIS through an asylum officer interview.
Marcelo emphasized the rigorous nature of these interviews. "An affirmative asylum interview is very detailed and can be even more intense than a court hearing," she explained.
Legal and Procedural Concerns
Marcelo pointed out that the attorney's role during these interviews is limited to observing to ensure rights are not violated, with a chance to speak at the end.
If USCIS granted affirmative asylum, the applicant could apply for permanent residency; if denied, a Notice to Appear was issued, and the case moved to court for a defensive process.
The new rule eliminates this intermediate step for certain cases, which Marcelo argues directly violates the law. "This rule contradicts what's established in immigration law by Congress, blurring the lines between affirmative and defensive asylum," she asserted.
Implications for Cuban Asylum Seekers
Marcelo also noted that the regulation breaches the Administrative Procedure Act by being released as an interim final rule without the usual notice and comment period.
She specified that Cubans with pending NTAs who haven't yet been sent to court and filed for asylum with USCIS are now at risk of being directly referred to a judge without an interview.
In response to this situation, Marcelo predicted legal challenges. "Given its illegality and contradiction to established immigration law, it's only a matter of time before a lawsuit is filed against this order," she declared.
Marcelo advised affected individuals to stay informed and consider withdrawing pending asylum applications if they have other eligible immigration options, such as Cuban parole.
USCIS defended the change as a strategy to alleviate the backlog in the affirmative asylum system and opened a 60-day public comment period, ending on September 28, 2026.
This new rule is part of a series of immigration measures introduced in 2026, including the review of previously granted political asylum cases and upcoming changes to public charge rules expected in September.
Legal Implications of the New Asylum Rule
What is the main change introduced by the new USCIS asylum rule?
The new rule allows USCIS to refer certain affirmative asylum cases directly to immigration court without conducting the previously mandatory asylum interview.
Why does Liudmila Marcelo consider the new rule a violation of immigration law?
Marcelo argues that the rule violates immigration law by removing a key procedural step and blurring the distinction between affirmative and defensive asylum, as established by Congress.
How might the new rule affect Cuban asylum seekers?
Cuban asylum seekers with pending NTAs who haven't yet been sent to court may be directly referred to a judge without an asylum interview, which could impact their application process.
What steps does Marcelo suggest for those affected by the new rule?
Marcelo advises staying informed about the rule changes and considering withdrawing pending asylum applications if other immigration avenues, like Cuban parole, are available.