Virginia AG Leads 21 States in DHS Asylum Interview Rule Challenge

• Virginia Attorney General Jay Jones and a coalition of 21 state attorneys general oppose a new DHS interim final rule that bypasses asylum officer interviews.
• The rule allows USCIS to refer affirmative asylum applicants directly to adversarial EOIR removal proceedings, potentially affecting 130,000 future applicants annually and 444,000 pending cases.
• The coalition argues the rule violates federal law, including the Trafficking Victims Protection Reauthorization Act for unaccompanied children, and disregards the importance of non-adversarial interviews.
• Concerns include increased detention risk, strain on state services, psychological distress for asylum seekers, and alleged non-compliance with the Administrative Procedure Act.
• The rule pushes applicants into a system with high denial rates, reportedly reaching 94% in June 2026, and may deny many a full merits hearing.

Attorney General Jones emphasized that cutting this critical step in the asylum application process removes the humanity from an already overwhelming and exhausting system.

A coalition of 21 state attorneys general, led by Virginia Attorney General Jay Jones, has formally challenged a new U.S. Department of Homeland Security (DHS) interim final rule (IFR) concerning asylum applications. The attorneys general submitted a comment letter expressing strong opposition to the regulation, which significantly alters the process for affirmative asylum seekers by curtailing their opportunity for an asylum officer interview.

The DHS asylum interview rule challenge centers on the IFR's provision allowing U.S. Citizenship and Immigration Services (USCIS) to bypass the traditional interview stage. Instead, USCIS can directly refer these applications to the Executive Office for Immigration Review (EOIR), effectively placing applicants into adversarial removal proceedings within the immigration court system. This move, according to Attorney General Jones, removes a crucial step in the asylum process.

Virginia AG Jones immigration concerns highlight the potential for this rule to diminish the humanity within an already complex and demanding system. The coalition argues that by silencing applicants from sharing their personal narratives, the rule deviates from fundamental principles of the nation's legal framework for those seeking refuge from persecution.

The DHS interim final rule asylum provisions enable USCIS to expedite the referral of affirmative asylum applications to EOIR, bypassing the initial, non-adversarial interview with a USCIS asylum officer. This change is projected to have a substantial impact on both future applicants and existing backlogs. DHS estimates that approximately 130,000 affirmative asylum applicants could be referred directly to removal proceedings each year without an interview under this new regulation.

Furthermore, the rule could affect a significant number of cases already pending within EOIR's asylum backlog, potentially impacting up to 444,000 individuals. This shift pushes asylum applicants into a more confrontational court setting where an Immigration and Customs Enforcement prosecutor actively argues against their claim. Such adversarial proceedings have historically shown high denial rates, reportedly reaching 94% in June 2026.

Concerns also arise that many applicants may not even receive a full merits hearing before an immigration judge, as denials frequently occur without this comprehensive review. This accelerated process could further strain an already lengthy system for asylum claims, potentially leading to significant delays or dismissals that impose additional financial and psychological burdens on individuals and families navigating the asylum process.

The coalition of attorneys general asserts that the IFR violates federal law, particularly highlighting its detrimental impact on unaccompanied children. Under the Trafficking Victims Protection Reauthorization Act, these minors are specifically entitled to have their asylum claims adjudicated through USCIS's non-adversarial process, not through the adversarial EOIR removal proceedings asylum system.

The attorneys general argue that the rule disregards the evidentiary importance of a non-adversarial asylum interview, departing from decades of established policy without adequate justification. Such interviews are deemed crucial for applicants to explain their reasons for seeking asylum, especially for vulnerable populations like unaccompanied minors and those who cannot afford legal representation. The Center for Victims of Torture reports that 44% of asylum seekers, asylees, and refugees in the U.S. are torture survivors, underscoring the critical need for a safe space to articulate their experiences.

Beyond the direct impact on asylum processing, the coalition's comment letter outlines several broader consequences for states and asylum seekers. The IFR is expected to increase the risk of detention and removal for state residents, disrupt their employment authorization, and make obtaining legal representation even more challenging for many applicants. This, in turn, will strain state-funded legal service providers, healthcare clinics, and immigrant integration resources, while also undermining law enforcement interests.

Furthermore, the rule is anticipated to exacerbate the psychological distress experienced by asylum seekers and their families, compounding trauma many have already endured while fleeing persecution. The attorneys general also point to potential economic repercussions, including undermining tax revenue and business income, given the vital role immigrants play in the workforce and broader economy.

Finally, the coalition contends that the DHS has abandoned compliance with the Administrative Procedure Act (APA) by circumventing established procedures in implementing this interim final rule. This alleged procedural lapse forms a key part of the legal challenge against the rule's validity.

Immigration lawyers representing asylum seekers, particularly unaccompanied minors, must be aware of the DHS interim final rule's immediate impact on case processing, as it bypasses asylum officer interviews and accelerates referral to adversarial removal proceedings. They should prepare clients for this expedited process and monitor the ongoing legal challenges by state attorneys general, which could influence the rule's future.

Source: Original reporting via the Commonwealth of Virginia Office of the Attorney General