OAKLAND — The rule places applicants in adversarial removal proceedings in immigration court and went into effect on July 28, 2026. The U.S. Department of Homeland Security estimates the rule could affect up to 444,000 cases already pending in the Executive Office for Immigration Review’s asylum backlog. The agency also estimates the rule could result in roughly 130,000 future affirmative asylum applicants being referred without an interview each year.

"For decades, affirmative asylum seekers have had the chance to explain to a trained asylum officer why they cannot return home safely because of a fear of persecution, but DHS’s hastily enacted rule illegally takes that opportunity away," said Attorney General Rob Bonta. "As the People’s Attorney, I am committed to ensuring that everyone in California, regardless of their legal status, has access to a fair immigration process."

Why It Matters

The U.S. Department of Homeland Security’s 2026 rule on asylum referrals without interviews is part of a broader trend of policy changes aimed at reducing the backlog in immigration courts, with similar rules having been implemented in prior years, such as the 2019 interim final rule on asylum eligibility. The 2026 rule change aligns with a broader DHS strategy to reduce affirmative asylum backlogs by shifting cases to immigration courts, a method previously used in 2019 when the agency estimated 1.4 million pending asylum applications, though the current rule targets 444,000 backlog cases directly.

The U.S. Department of Homeland Security (DHS) has a history of implementing asylum-related rules that have faced legal challenges and opposition from state attorneys general, including a 2019 interim final rule on asylum eligibility that was preliminarily enjoined by a federal court. In 2019, the U.S. Department of Homeland Security issued an interim final rule modifying asylum eligibility and procedural requirements, which was challenged in court and ultimately found to be in violation of the Administrative Procedure Act due to insufficient consideration of its impact on asylum seekers.

Timeline

The denial rate for asylum claims in adversarial proceedings reached 94% in June 2026. The rule went into effect on July 28, 2026. California Attorney General Rob Bonta submitted a comment letter opposing the U.S. Department of Homeland Security’s new rule limiting affirmative asylum applicants’ opportunity to participate in an asylum officer interview. On that same date, the coalition opposing the rule includes the attorneys general of Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Nevada, New York, Oregon, Rhode Island, Virginia, Vermont, Washington, and the District of Columbia.

What's New

Additional reporting indicates California Attorney General Rob Bonta, along with multiple other states, submitted a comment letter opposing the U.S. Department of Homeland Security's (DHS) proposed rule that would modify filing and eligibility requirements for individuals seeking Employment Authorization Documents (EADs) based on pending asylum applications. The 1994 DHS rulemaking explicitly acknowledged that asylum interviews provide critical context for evaluating claims, particularly for survivors of trauma, a rationale later cited by California Attorney General Rob Bonta in opposing the 2026 rule.

In 2019, the U.S. Department of Homeland Security (DHS) proposed a rule to restrict asylum eligibility for applicants who transited through third countries, which faced legal challenges and was later withdrawn, reflecting prior attempts to limit asylum access through procedural changes.

How Sources Differ

Sources differ on details regarding immigration courts. One source states the U.S. Department of Homeland Security’s 2026 rule on asylum referrals without interviews is part of a broader trend of policy changes aimed at reducing the backlog in immigration courts, with similar rules having been implemented in prior years. Another source notes the 2026 rule change aligns with a broader DHS strategy to reduce affirmative asylum backlogs by shifting cases to immigration courts, a method previously used in 2019 when the agency estimated 1.4 million pending asylum applications, though the current rule targets 444,000 backlog cases directly.