Rainbow Railroad submitted the following comment in response to the U.S. Department of Homeland Security Docket No. USCIS-2026-0199, Affirmative Asylum Referrals Without Interview.
As we state below, the rule would jeopardize LGBTQI+ asylum seekers right to have their claims fairly processed and fully heard.
To Whom It May Concern:
Rainbow Railroad submits this comment in strong opposition to the Interim Final Rule issued by the Department of Homeland Security (“DHS”), Affirmative Asylum Referrals Without Interview. Rainbow Railroad is a nonprofit, non-partisan human rights organization with over 20 years of experience as direct service providers and advocates, creating pathways to safety for at-risk LGBTQI+ people.
This rule, which went into immediate effect, gives U.S. Citizenship and Immigration Services (“USCIS”) authority to refer asylum cases directly to immigration courts for removal proceedings without first conducting an interview. By permitting USCIS to bypass asylum interviews, this rule strips LGBTQI+ claimants of their right to present evidence of persecution based on their sexual orientation, gender identity or expression, or sex characteristics ("SOGIESC"), explain their trauma and fear of return, and discuss their eligibility with a neutral, specially trained asylum officer.
For decades, asylum interviews with USCIS have offered a non-adversarial setting for the individual to have their claim for protection assessed. Unlike in immigration court, where applicants are confronted by an Immigration and Customs Enforcement attorney arguing against their claim and for their deportation, an interview with USCIS is a place for a person seeking safety to discuss their fear of return and share additional information they may not have obtained yet, felt safe including in their written application, or may not have understood was legally relevant. For people who have been persecuted based on their SOGIESC, the former threatens to retraumatize survivors, forcing them to relive violence in an adversarial courtroom.
Determining someone does not qualify for asylum solely on their written application, without ever talking to the applicant about the persecution they fled or allowing them to explain complex factors — such as reasons for filing for asylum more than one year after arriving in the United States — is a violation of their due process and their right to have their claim fully heard and considered. This is especially true for LGBTQI+ claimants, who often spend years concealing who they are as a matter of survival. Rainbow Railroad’s data demonstrates that the majority of LGBTQI+ individuals requesting help are young adults without family support or adequate resources who face barriers to community integration. It can take significant time and trust before a survivor is ready to name their SOGIESC to a stranger, let alone navigate the complex procedures in place to exercise their right to protection and defend it in an adversarial court setting. This rule ignores this reality and closes off a fair route to protection for people whose ability to make an asylum claim is shaped by the very persecution they fled.
Trauma, complex legal standards, limited time to prepare and file, barriers to corroborating evidence, limited language access, and difficulty obtaining competent counsel often make it impossible for a survivor to demonstrate on a paper record alone that they meet asylum eligibility criteria. As a result of this rule, LGBTQI+ people seeking safety will be at imminent risk of detention or deportation, without ever having had the opportunity to present their case, in either an interview or hearing, to determine whether they qualify for protection.
USCIS claims that this rule would reduce its 1.4 million asylum applications backlog, but in reality it is only shifting these cases to the immigration courts, which already have a backlog of over 3 million cases, and are plagued with due process violations. Immigration courts have been purged of many of the most experienced adjudicators under this administration and are now staffed by some judges who have been hired with no immigration experience. They have been described by the administration as “deportation judges” and have held mass hearings to issue mass in absentia removal orders.
Furthermore, immigration judges have been empowered to pretermit, or deny asylum applications without holding a hearing, which may result in LGBTQI+ people being deported to dangerous places, including countries they have no connection with or the country they are fleeing from. The United States is bound by the 1967 Protocol to the 1951 Refugee Convention and by the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which forbid returning asylum seekers to countries where they face persecution or torture. SOGIESC-based persecution is a recognized basis for making an asylum claim, but that protection only holds if a person gets a genuine opportunity to demonstrate their claim.
This rule compounds the risk. A claimant referred to court without an interview can then be pretermitted by an immigration court, leaving them unheard at every stage. The danger of getting this wrong is particularly acute for LGBTQI+ people, since at least 66 jurisdictions criminalize same-sex relationships and 13 criminalize gender nonconformity. This rule risks sending LGBTQI+ claimants back into the very danger they fled.
For all these reasons, we urge USCIS to immediately withdraw this rule in its entirety, which was implemented without sufficient advance notice or opportunity for engagement. Instead of violating due process for people fleeing persecution, USCIS should focus on upholding the affirmative asylum process, which guarantees a neutral place for people seeking safety to discuss their fears.
Respectfully submitted,
Rainbow Railroad