In recent months, U.S. Citizenship and Immigration Services (USCIS) has begun dismissing properly filed affirmative asylum applications (Form I-589). This is being done on the basis of alleged prior expedited removal (ER) orders—often without legal basis or adequate record support. This abrupt shift in practice is affecting a growing number of foreign nationals who entered the U.S. legally. Or were paroled into the country without ever being issued Form I-860 (Order of Expedited Removal).
At Ahluwalia Law Offices, we are closely monitoring these developments and helping impacted clients take the appropriate next legal steps.
What’s Happening?
Many asylum seekers are receiving USCIS dismissal notices asserting that the agency lacks jurisdiction due to an alleged prior expedited removal order. However, in most of these cases:
- DHS never issued an actual expedited removal order;
- The applicant was placed in INA § 240 removal proceedings or paroled into the U.S.;
- Jurisdiction had already been properly established with USCIS under 8 C.F.R. § 208.2(a)(1)(i).
This misclassification now places these individuals at risk of detention or deportation and deprives them of the opportunity to pursue asylum in a non-adversarial setting.
Legal Framework: USCIS vs. EOIR Jurisdiction
According to the USCIS Policy Manual and federal regulations:
- USCIS has initial jurisdiction over affirmative asylum applications filed by individuals physically present in the U.S.
- The immigration court (EOIR) assumes jurisdiction only after a Notice to Appear (Form I-862) is filed.
The current practice of dismissing affirmative I-589 applications due to unverified or incorrect ER orders contradicts USCIS’s own regulations and guidance.
Recommended Legal Steps for Affected Applicants
1. Check Your USCIS Online Account Weekly
If you submitted Form I-589 online, regularly monitor your myUSCIS account for updates, especially under the “Notices” tab. Set up email or text alerts if available through your account. Attorneys should track receipt numbers in the legacy Case Status system for notification.
2. File a FOIA Request
Submit a Freedom of Information Act (FOIA) request for the client’s “A-file” to verify the existence—or absence—of any expedited removal order. Focus on entry records, parole, credible fear interviews, and notices to appear.
3. Prepare Clients for Possible Detention
If a client has no other immigration status, a dismissal could result in arrest. In such cases, advise them to clearly state to authorities:
“I have a fear of return” and “I request a credible fear interview.”
4. File an I-589 with Immigration Court if in Removal
Use the EOIR automated system to confirm if the client is in proceedings. If so, file a new I-589 promptly and attach the original USCIS receipt notice to preserve the initial filing date for one-year deadline exceptions.
5. Request a Credible Fear Interview (CFI)
If the client is not yet in removal proceedings or is detained, submit a request for a CFI via email to the District 3 USCIS office. Attach a signed Form G-28 and notify ICE if the client is detained.
6. Prepare the Client for the CFI
These interviews are often unscheduled and can occur at any time. Counsel your client thoroughly—covering their history, incidents of harm, reasons for fleeing, and legal basis for asylum. You may also submit supplemental documents and attend the interview by phone.
Final Note
This trend of USCIS dismissing asylum claims over disputed expedited removal orders represents a concerning departure from longstanding enforcement norms. If you or someone you know is affected by such a dismissal, timely legal action is essential. At Ahluwalia Law Offices, we are equipped to assess jurisdictional issues, guide clients through the asylum process, and defend their right to seek protection in the United States.
If you’ve received a dismissal notice, contact our office immediately. Your opportunity for asylum relief may still be protected—if you act swiftly.
