Your Asylum Application Could Land You in Court: What Few Will Tell You

Immigration attorney Liudmila Marcelo has issued a stark warning to Cubans with pending asylum applications with the U.S. Citizenship and Immigration Services (USCIS): the process, often initiated just to secure a work permit, might unexpectedly lead them into the Immigration Court system.

New Rule Increases Risk of Court Proceedings

The threat has become more tangible since the USCIS introduced rule 91 FR 47101 on July 28, 2026, which allows affirmative asylum applications to be sent directly to an Immigration Judge without an initial interview with the applicant. This rule was implemented immediately and affects all pending applications from that date forward, except those already scheduled for an interview.

Comparison with CBP One Entrants

Marcelo explained that Cubans who entered through CBP One — known as CDP — had a Notice to Appear (NTA) and an active judicial process from the start. In contrast, those who arrived under humanitarian parole did not automatically face such circumstances, but by submitting asylum requests to USCIS, they now risk their cases being moved to court.

Loss of Opportunities for Residency

The core issue, according to Marcelo, is that once a case reaches Immigration Court, the applicant loses the opportunity to process residency through USCIS. "If you're taken to court, you don't have immigration relief there because residency comes first," she pointed out.

Advisory Against Romanticizing Asylum Applications

Marcelo criticized those who filed for asylum without assessing the risk. "Thinking romantically that the asylum would eventually solve your problem was mistaken. It only provided a work permit," she stated. She emphasized that the most vulnerable group includes Cubans who arrived directly from the Island under humanitarian parole in 2023. "If those who entered earlier are losing their asylum cases, imagine someone who came through humanitarian parole from Cuba in 2023."

Additional Risks: The Credible Fear Interview

Besides the risk of being moved to court, Marcelo warned of another potential threat: USCIS may call the applicant for a "credible fear" interview, which imposes stricter standards and tighter deadlines than the usual affirmative asylum process.

Marcelo's Urgent Recommendations

Given these circumstances, Marcelo's advice was clear: "Please request to have your asylum case closed. While a work permit is at stake, the risk of being taken to court or summoned for a credible fear interview is significant."

Guidance for Other Immigration Situations

During a public Q&A session, Marcelo also provided guidance for other scenarios. To a humanitarian parolee waiting two years for residency, she suggested initiating pre-litigation at two and a half years to start the Mandamus process. "At two and a half years, you need to begin pre-litigation steps and then proceed with the Mandamus process."

For a ten-year resident through marriage whose passport was invalidated by the Venezuelan regime, Marcelo reminded her of a viable option: "Remember, you can apply for citizenship after three years if you've also been married for three years."

Miami-Dade Immigration Court Backlog

The urgency of these warnings is heightened by the context. The Miami-Dade Immigration Court had 137,373 cases pending as of July 27, 2026, increasing the risk of delays, confusion, and deportation orders issued in absentia for those sent to court unknowingly.

This situation highlights the potential pitfalls for those with pending immigration processes. Stay informed about changes in laws and procedures in our U.S. Immigration section.