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By Shubhanjana Das and Cynthia Tu | Sahan Journal

Legal experts in Minnesota say a new Department of Homeland Security (DHS) rule will put more asylum seekers into deportation proceedings without an interview.

The rule adopted this past week will allow U.S. Citizenship and Immigration Services (USCIS) to forward certain asylum applications directly to federal immigration courts. The change impacts affirmative asylum seekers, who have applied for asylum with USCIS, compared to defensive asylum seekers who are already facing removal proceedings in court. 

The ruling comes at a time when thousands of immigrants in Minnesota have either 

lost or are set to lose Temporary Protected Status (TPS)

, and when asylum approvals are at a record low. 

While the rule went into effect on July 28, USCIS is accepting 

 till the end of September before a final decision is made. 

Lawsuits are likely to follow, but thousands of asylum seekers will be impacted in the meantime, legal experts say.

There were more than 365,000 affirmative asylum applications from Jan 1, 2025, to March 31 of this year, according to 

. There were 40,000 cases in 2025 and 31,000 so far this year that have been referred to immigration court, according to the 

Executive Office of Immigration Review (EOIR). 

While it is not clear how many live in Minnesota, the state is home to at least 

, a Washington, D.C. organization that researches federal work permit policy. An estimated 35,000 asylum seekers were awaiting a decision on their claim in Minnesota in 2024, according to 

, a policy organization aimed at advancing criminal and immigration justice. This year, Fort Snelling Immigration Court has adjudicated 2,100 asylum cases, up from a total of 1,700 last year. 

“In order to reduce the affirmative asylum backlog, improve efficiency of operations, safeguard national security and public safety, and ensure consistency with agency priorities, USCIS will no longer offer interviews to all affirmative applicants prior to referral to EOIR,” the 

This rule change is the latest that the Trump administration has made in the past year making it harder and more expensive for those applying for asylum to 

 and earn a living in the U.S. while awaiting their decisions, their advocates say. 

“The administration would like to abolish asylum, but they don’t want to have to go through Congress and actually change the law, and so they’re taking everything that is in the law and they’re finding all the places where they think they can erode it,” Madeline Lohman, advocacy director at The Advocates for Human Rights told Sahan Journal. 

The rule change removes references to a “right to” an interview and reframes it as optional. It also will also remove the opportunity for the applicant to explain any filing problems, removes the requirement for a credibility assessment in the referral letter to the court, and lets an asylum officer decide an applicant’s asylum merit as a matter of discretion without assessment. 

DHS also acknowledged that this rule could mean that cases that could’ve been granted by USCIS may now be referred to the court. “This could cause some aliens to experience increased wait times and slower case resolution, and DOJ could incur new costs processing these claims.”

USCIS did not answer Sahan Journal’s questions on which kind of affirmative asylum cases this would impact and if this rule — intended to clear the affirmative asylum backlog at USCIS — would lead to faster decisions for those granted an interview. 

“America’s asylum system exists to protect individuals who genuinely fear persecution and this rule will help ensure that resources are directed to the timely adjudication of those claims instead of to those seeking to use the system as a loophole,” USCIS Director Joseph Edlow said in a 

Legal experts say USCIS interviews have been a bedrock for the asylum process. These interviews, which require a lot of preparation and gathering evidence, allows applicants a fair chance to present their case to a USCIS officer. 

Veronica Thronson, a visiting professor at the University of Minnesota Law School who recently prepared an 8-year-old client for an asylum interview, said the process is long, and often traumatic and harrowing for applicants. But it is important for establishing one’s fear of persecution, she added. 

 to people who have faced persecution or have a well-founded fear of future persecution based on five protected grounds: race, religion and nationality, alongside membership in a particular social group or political opinion. 

“The beauty of the affirmative application process is that it’s non-adversarial,” Thronson said. “You are sitting there, you are telling them your story. You are not being subject to cross-examination, you are not in a trial.” 

Thronson, who leads the Immigration & Human Rights Clinic, part of the Law School’s James H. Binger Center for New Americans, said that with this rule adjustment, that posture changes. “Now, even though you file affirmatively and the government wasn’t trying to deport you, you are being put in deportation proceedings. Now it’s adversarial.” 

‘More efficient to issue orders of removal’

Cassondre Buteyn, lead attorney at Wilson Law Group, said that she is concerned about the discretionary power this rule puts on asylum officers and the ability to review the law and policy behind a discretionary decision. 

“We have seen this abuse of discretion as a way to disqualify applicants from all types of benefits under this administration,” Buteyn said. 

While Thronson and Buteyn suggest that this rule change puts a lot of discretionary power on asylum officers, Lohman argues that it is in fact taking away their discretionary power.

“If this tracks how they implemented very similar rules in immigration court about making decisions on cases without hearing testimony from the individual, without requesting additional evidence, that was a power granted to immigration judges,” Lohman said. 

“But that grant of power to dismiss cases was actually a directive [and] pressure on the judges to dismiss the cases. So instead of saying, ‘Oh, we’re giving you another tool in the toolbox; use it how you see fit,’ they said, ‘We’re giving you another tool in the toolbox, and we want you to use it on every possible case you can.’” 

In theory, defensive asylum cases argued in court would have to meet the same criteria to be granted asylum and would have equal opportunity as an affirmative applicant to present their case, but the reality has veered far from it.

“The [immigration] court has become so weaponized, and grant rates are so low and due processes just consistently undermined in immigration court that the option is not as good as it was in the past,” Hanne Sandison, immigration legal services director at The Advocates for Human Rights said.

Ryan Wood, a former assistant chief immigration judge at Fort Snelling Immigration Court who has trained hundreds of immigration judges, agreed. 

Of the 2,100 cases adjudicated in Fort Snelling Immigration Court this fiscal year so far, only 116 cases were approved, according to 

 from The Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

“Judges are moving very, very quickly to enter removal orders,” Wood said. “So, in some ways, it is more efficient to just issue orders of removal. But we’re not putting the due process into the effort in adjudicating. There are going to be very strong asylum applications where their life or freedom is going to be threatened on account of their political opinion, their religious beliefs… Those are now going to be orders of removal.”

While it is unclear which kind of cases are likely to be referred to the court without an interview, Wood said there are patterns in the kind of affirmative cases he reviewed as an immigration judge: from people who have applied for asylum one year after arriving in the U.S to those with a criminal background or who have a trial removal order. 

“There’s all kinds of technical reasons that an asylum officer can’t get around that need to be reviewed in court in an adversarial posture,” he said.

More than 1.4 million asylum applications

 received by USCIS are still awaiting a decision as of March 31, 2026. DHS cites USCIS affirmative asylum backlog as one of the reasons behind the rule change, but advocates say that directing more cases to immigration court will in turn suffocate an already overburdened and under-resourced system.

Immigration-related cases processed at Fort Snelling Immigration Court between October 2025 and June 2026 took 27.5 months on average from beginning to end, according to a TRAC analysis.

DHS argues in the rule that the overall number of aliens who will ultimately be referred to EOIR will not necessarily increase “because the rule is intended to refer applications without interview where the application would have been referred even if an interview had been conducted. DHS accordingly does not believe that the impact to EOIR’s backlog will be significant in the long term.”

But Wood said that he failed to see the efficiency argument in the rule. There are a lot of resources required in a courtroom to address asylum cases. “In terms of a financial aspect, [it] doesn’t make sense to take it from one under-resourced agency to give it to another under-resourced agency,” he said.

Buteyn agreed, blaming a continued lack of resources for the backlog. “We’ve just not chosen to invest in our infrastructure for these cases,” she said. “If we had a better system to process these cases in a meaningful way, and better laws overall, we wouldn’t be in this position.”

Many of the people arriving in Minnesota on a humanitarian immigration status — including refugees, special immigrant visas, and asylum seekers — are from Somalia, Ukraine, Afghanistan and Ethiopia, according to the Minnesota Department of Health. 

Nasreen Sajady, executive director of Afghan Cultural Society, said that most people from Afghanistan in Minnesota are affirmative asylum seekers, wherein they arrived in the U.S. on a different visa and then sought asylum with the USCIS on grounds of persecution. They lost their temporary protected status last July. 

Sajady laid out the grounds for their fear of persecution or even death if they returned to Afghanistan: “Several of these people worked side by side with the U.S. military, and so they put their lives on the line to keep U.S. citizens alive. If they go back, they’re seen as an enemy. Other folks are persecuted because of their ethnicity, and that continues to happen. Minority groups are persecuted, and some of them are women who would have to go back to situations where they can’t even leave the house alone, let alone go to work or educate themselves. And now they could be forced to go back. That could mean death for many people in this community.”

Buteyn of Wilson Law Group mostly represents clients from Latin American countries. She has handled asylum cases of Honduran economic refugees and those fleeing criminal gangs in El Salvador, religious persecution in Nicaragua and political persecution in Venezuela. More generally, people from Latin American countries are also fleeing gang extortion, domestic violence and criminal elements, Buteyn said. And despite the continued blows on asylum, she said that people with genuine fear of persecution will continue to apply. 

“[We’re] still seeing many families making the choice to send their children sometimes, or to abandon all that they have for this possibility of having a safe life, having the opportunity to have an honorable, dignified life here in the United States,” Buteyn said.

Sandison of The Advocates for Human Rights said that she is concerned about asylum seekers who don’t have lawyers to help prepare their application with sufficient evidence to support their case. Many have basic applications which consist of the I-589 form for asylum; the expectation is that the application will be supplemented with evidence and an interview. “If [asylum officers are] using those basic applications to make final decisions and then refer folks to court, they won’t have the full story,” Sandison said. 

Buteyn said she has learnt to adopt a wait-and-see approach for changes like these that are often contested in court. She hopes the same for this rule. “I don’t want to cause my clients more concern,” she said.  

For the Afghan community, the stress of this rule has led to people expressing uncertainty about the future of their cases. 

“Those folks that I know that are waiting to hear back about asylum, they are in very high stress energies right now,” Sajady said. “Things are really hard, and with this added level of not knowing where you’re going to be and what’s going to happen, it’s really hard for people to continue a day-to-day life.”

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