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Motion to Pretermit

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You may have heard of cases where the Court pretermit a respondent’s application and ordered them removed before they even had their individual hearing. This is something that can happen if you do not submit a complete application that states a valid claim for relief that is supported by the required evidence. This has always existed but it has become much more common under the current administration due to their aggressive immigration policies as well as some recent case regarding pretermission such as Matter of C-A-R-R-, 29 I&N Dec. 13 (BIA 2025) and Matter of H-A-A-V-, 29 I&N
Dec. 233 (BIA 2025). Since April 2025 Immigration judges have been explicitly encouraged to pretermit asylum applications as the Executive Office for Immigration Review (EOIR) issued Policy Memorandum 25-28, Pretermission of Legally Insufficient Applications for Asylum.

What is a Motion to Pretermit?

A motion to pretermit is a motion that the Department of Homeland Security can file with the Immigration Court, asking that the Judge essentially deny your application for relief without having a trial because based on the information provided in the application the respondent cannot possibly establish their eligibility for the relief being sought. The reason so many cases are pretermit is because many people do not provide enough details in their application to prove their case.

The Board’s decision in Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025) held that Immigration Judges may pretermit applications where the respondent has not established prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture—even when viewing the application in the light most favorable to the respondent. The decision rests on the premise that a hearing is required only when there is a factual dispute that must be resolved.

This is why it is more important than ever that applicants for asylum make sure that they provide detailed answers to all of the questions on the Form I-589 and provide a very detailed personal statement describing the facts surrounding their asylum claim. As well as explaining all the harm previously suffered or the reasons for the respondent’s fear of future harm, the respondent must be sure to provide articulate a clear nexus to a legally cognizable protected ground and, where the persecutor is a non-state actor, establishing that the government is unable or unwilling to provide protection. Of course, they must also address any potential asylum bars and why they do not apply in their case.

Asylum Cooperative Agreements (“ACAs”)

Pretermission is an extremely difficult hurdle if your case is subject to any Asylum Cooperative Agreements (“ACAs”). The first Trump administration entered into ACAs with El Salvador, Guatemala, and Honduras. The current Trump administration has pursued ACAs with Belize, Ecuador, Guatemala, Honduras, Paraguay and Uganda while future ACAs with additional countries are anticipated. These ACAs, according to the Government, give this administration the ability to remove individuals from any country with an executed ACA if they entered the United States at a port of entry without a visa, or if they entered without inspection between ports of entry, on or after November 19, 2019, without having to give them an asylum hearing The ACAs are agreements that say the US can send asylum applicants from these countries to anyone of the participating countries and that country will give them an asylum hearing so the US does not have to. There are very limited exceptions that are almost impossible to invoke.

The BIA has upheld their authority to do this in Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. 291 (BIA 2025). The BIA also emphasized that immigration judges lack authority to decide whether the third country offers a “full and fair” asylum process or whether it is in the “public interest” to allow the respondent to apply for asylum in the United States. Those determinations are reserved to DHS and the Attorney General under 8 C.F.R. § 1240.11(h). Matter of C-I-G-M- & L-V-S-G- reframes ACA pretermission as a mandatory threshold screening inquiry. If a respondent cannot establish that an ACA exception applies, such as by demonstrating, under the “more-likely-than-not” standard, a risk of persecution or torture in the designated third country, the immigration judge must pretermit the asylum application without holding an individual hearing or addressing the merits of the claim. The Judge may simply determine that the ACA applies and enter an order of removal to that third country.

Incomplete Applications

An application may also be pretermit for being incomplete. Under 8 C.F.R. § 1208.3(c)(3),21 an asylum application is incomplete if it does not include a response to each of the questions contained in Form I-589, is unsigned, or is unaccompanied by the required materials.

The regulations specify that an incomplete application must be returned to the applicant and “[a]n application returned to the applicant as incomplete shall be resubmitted by the applicant with the additional information if he or she wishes to have the application considered. Even more significantly, 8 C.F.R. § 1208.3(c)(3) goes on to say, “[i]f the Service has not mailed the incomplete application back to the applicant within 30 days, it shall be deemed complete.” (Emphasis added). The Pretermission Memo does not cite this regulation at all and Matter of C-A-R-R-, which does cite the regulation including this language, does not discuss the “deemed complete” section of the regulation.

The immigration judge cannot simply reject an applicant’s application based on an analysis that the applicant has not made a prima facie case for the relief sought.  Such reasoning is in violation of the immigration statute, applicable BIA precedential case law, and contrary to the due process protections in the United States Constitution. The Government is saying that they can and ignoring the law.

How Pretermission Violates the Law

Pretermission as a practice likely violates the U.S. Constitution, the Immigration and Nationality Act (INA), regulations, and binding precedent which require EOIR to allow asylum seekers to testify in support of their applications.

For over 100 years, the Supreme Court has recognized the special considerations in deportation cases and the need for due process1. “[Deportation] may result also in loss of both property and life, or of all that makes life worth living. Against the danger of such deprivation without the sanction afforded by judicial proceedings, the Fifth Amendment affords protection in its guarantee of due process of law.” The right to due process of law in immigration proceedings is enshrined in the Fifth Amendment of the U.S. Constitution2. “The essence of due process is the requirement that ‘a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.’” The Fifth Amendment requires that noncitizens in immigration proceedings receive “a full and fair hearing” and have a “reasonable opportunity to present evidence on [their behalf].”

INA § 240(b)(4)(B) states that the noncitizen “shall have a reasonable opportunity to examine the evidence against the [noncitizen], to present evidence on the [noncitizen’s] own behalf, and to cross-examine witnesses presented by the Government.” When presenting evidence, the Fifth Amendment right to due process37 gives respondents the right to present evidence that is “probative and its admission is fundamentally fair.”

The INA described “Proceedings Generally” as including certain rights for the respondent as shown below:

Alien’s rights in proceeding

In proceedings under this section , under regulations of the Attorney General—

the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceeding

the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government but these rights shall not entitle the alien to examine such national security information as the Government may proffer in opposition to the alien’s admission to the United States or to an application by the alien for discretionary relief under this chapter, and

a complete record shall be kept of all testimony and evidence produced at the proceeding.

Several Courts of Appeals, the BIA, and the Attorney General have recognized that Immigration Judges generally have a duty to develop the record relying on INA § 240(b)(1)3. That provision states that the IJ “shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the [noncitizen] and any witnesses.” Of course, oaths, interrogation, examination, and cross-examination are possible only in hearing settings. Receiving evidence applies to both documentary evidence submitted prior to a hearing and testimony during a hearing offered in support of an application for relief. In Matter of Y-L-, 24 I&N Dec. 151, 161-62 (BIA 2007), citing Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997) (en banc) the BIA recognized “the shared responsibility of parties and the IJ to assure that relevant evidence is included [in] the record.” The concept of the Immigration Judge’s primary responsibility being to gather the facts and build a record has long existed and Circuit Courts have found that Immigration Judge’s erred in failing to do so4.

Several regulations underscore asylum seekers’ right to testify in support of their I-589 at an individual hearing. 8 C.F.R. § 1208.13(a) states that the burden of proof is on the asylum seeker to establish that they are a refugee as defined in INA § 101(a)(42). This regulation, which adopts the Mogharrabi standard5, specifies that the “testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” Likewise, 8 C.F.R. § 1240.11(c)(3) states that applications for asylum and withholding of removal are to be adjudicated by the IJ “after an evidentiary hearing to resolve factual issues in dispute.”

The pretermission memo from the DOJ calls into question the value of the precedential case, Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), which has been relief on by the Courts for 36 years. In Matter of Fefe, the Board found that “an essential aspect of the asylum adjudication process” required a full oral examination of the applicant. This was necessary to protect the integrity of the asylum process itself, and provide fairness to the parties. The Board explains that even though the immigration judge has the authority to control the scope of an evidentiary hearing in the interest of efficiency, such authority must, at a minimum include an opportunity for the applicant to present evidence and witnesses in his or her own behalf.

The Board previously held, in Fefe, that in “the ordinary course, however, we consider the full examination of an applicant to be an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the asylum process itself.” In coming to this conclusion the Board cited to Matter of Mogharrabi.

Matter of Fefe cites the regulation it is interpreting as follows, “The regulations further provide at 8 C.F.R. § 236.3(a)(2) (1988) that when an applicant requests asylum in exclusion proceedings, he “shall be examined under oath on his application and may present evidence on his behalf.” 20 I&N Dec. at 117. Matter of E-F-H-L, 26 I&N Dec. 319, 323 (BIA 2014), vacated on other grounds, Id. at 226 (AG 2018), the BIA acknowledged the similarity of the newer regulations to those in existence at the time of Matter of Fefe.

The Pretermission Memo reminds adjudicators that another BIA decision that was vacated was Matter of E-F-H-L, which also addressed the importance of testimony in asylum hearings. That decision was vacated when the Attorney General in Trump’s first term issued a decision vacating it on procedural grounds. The AG’s decision, ironically, did not address the issue on its merits.

How to Avoid Pretermission or Respond to a Motion to Pretermit

If you are subject to an ACA there isn’t much that you can do other than argue that it is bad law and should not be applied to you or your case. Regardless of whether you are subject to an ACA you must always make sure that you provide sufficient details to establish your eligibility for asylum, withholding of removal, and/or protections under the Convention Against Torture.

  • Fully answer all questions on the Form I-589, application for asylum.
    Review each question on Form I-589 carefully with your client and be sure that you answer each part completely. Do not assume that you will be able to supplement these answers in a declaration, supporting evidence, or testimony.

  • Make sure that the Form I-589 application satisfies all elements of the relief being sought and establishes a prima facie case.
    Ensure that you have provided enough detail about the claim within the Form I-589 to support all of the necessary prima facie elements for relief. Your answers should address all five of the following elements:
    1. the applicant’s particular social group;
    2. the harm suffered in the past or future harm feared;
    3. the reason for the harm;
    4. the nexus between the harm and membership in the particular social group; and
    5. the harm is being inflicted by the government or the government is unable/unwilling to protect the applicant from the harm.

  • Provide these details in the Form I-589 itself.
    Do not rely on a personal statement/declaration submitted with the application to establish eligibility. If you need more space you can use a Supplement B page to write as much as necessary.

  • Revise/supplement initial application if necessary.
    If you need to revise and/or supplement a pending I-589 to satisfy the requirements, it is advisable to file amendments rather than a whole new Form I-589 to avoid issues with the one-year filing deadline and the asylum clock under Matter of M-AF-, 26 I&N Dec. 651 (BIA 2015).

  • Address fear of removal to ACA countries.
    In light of Matter of C-I-G-M- & L-V-S-G-, the respondent bears the burden to demonstrate by a preponderance of the evidence that it is more likely than not they would be persecuted on account of a protected ground or tortured in the proposed third country.

  • Request clarification from the Judge.
    If you are unsure you can always ask the Immigration Judge if they will consider the attached statement as being part of the asylum application for these purposes or any other questions you may have.

    • WHAT TO DO IN CASE OF PRETERMISSION

    If your case has been pretermitted, you should reserve appeal. You should timely file a Notice of Appeal with the BIA. If the BIA affirms the pretermission and dismissal, the subsequent step would be to file a Petition for Review with the appropriate federal circuit court. You should talk to an immigration attorney as soon as you find out about the pretermission and review the options that are available.

    In addition to appeals you may seek a motion to reconsider the Immigration Judge or the BIA’s decision or a motion to reopen. These too have a time restriction for when they may be filed and you may only file one of these motions, so make sure you speak with an attorney before pursuing one to determine if that is a good idea. Filing a motion to reopen or reconsider will not toll

    IF YOU MISSED THE THIRTY-DAY DEADLINE TO APPEAL

    Where a removal order was not issued in absentia, as in the pretermission context, you may try to reopen proceedings pursuant to INA § 240(c)(7)(B). This reopening ground is subject to a 90-day deadline from the final removal order, giving you an additional 60 days. This ground for reopening requires presenting newly discovered facts or a change in circumstances since the time of your last hearing in immigration court. You may be able to argue facts that were not put onto the record because of the pretermission preventing you from doing so by ending the case before any testimony was taken. You can argue the Immigration Judge prevented the material facts from being part of the record by incorrectly relying on the Pretermission Memo instead of applying 8 C.F.R. §1208.3(c)(3) and giving the respondent 30 days to correct any deficiencies. You should also argue that the Immigration Judge failed to fulfill their duty to develop the record which requires the asylum seeker to have an opportunity to present testimony.

    The time you have to appeal is extremely limited. Currently it is 30 days but a rule has already been established that will reduce that deadline to 10 days for some people, so acting quickly is very important.

    Other Arguments Against Pretermission

    The new pretermission policy deprives asylum seekers of their due process right to notice by applying a new legal standard retroactively to asylum applications that were filed before issuance of the Pretermission Memo. The Supreme Court has made it clear that even statutory changes should generally not be enforced retroactively. See I.N.S. v. St. Cyr, 533 U.S. 289, 316 (2001).

    Pretermission violates the due process rights of the applicant by failing to provide them with notice of the intent of the Court to pretermit and the standard being applied to their application , which differs significantly from that which has been applied in the past.

    The INA entitles noncitizens in immigration proceedings to present testimony and other evidence on their behalf. INA § 240(b)(4)(B) states that the noncitizen “shall have a reasonable opportunity to examine the evidence against the [noncitizen], to present evidence on the [noncitizen’s] own behalf, and to cross-examine witnesses presented by the Government.” When presenting evidence, the Fifth Amendment right to due process gives respondents the right to present evidence that is “probative and its admission is fundamentally fair.”

    Footnotes

    1. Ng Fung Ho v. White, 259 U.S. 276, 284–85 (1922). ↩︎
    2. Reno v. Flores, 507 U.S. 292, 306 (1993). ↩︎
    3. See, e.g., Arevalo Quintero, 998 F.3d at 622–23; see also Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009) (IJ’s “obligation [to develop the record] is founded on his statutory duty” under § 1229a(b)(1)); Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir. 2004) (citing § 1229a(b)(1) as basis for the duty to develop the record); Mekhoukh, 358 F.3d at 129 n.14 (same); Costanza-Martinez v. Holder, 739 F.3d 1000, 1102–03 (8th Cir. 2014) (same); ; Matter of
      J-F-F-      , 23 I&N Dec. 912, 922 (A.G. 2006) (citing § 1229a(b)(1) as basis for rule that “[i]t is appropriate for [IJs] to aid in the development of the record, and directly question witnesses, particularly where [the] [noncitizen] appears pro se and may be unschooled in the deportation process. . . .”); Matter of S-H-, 23 I&N Dec. 462, 464 (BIA 2002) (emphasizing that for an IJ’s decisions to be reviewable, they must include clear and complete findings of fact). See also 8 C.F.R. § 1003.10(b) (restating 8 U.S.C. § 1229a, INA § 240(b)(1)). ↩︎
    4. See Matter of J-F-F-, 23 I&N Dec. 912, 922 (A.G. 2006); see, e.g., Ortiz-Ortiz v. Sessions, 698 Fed. Appx. 868, 871 (9th Cir. 2017) (unpublished) (failure to ask about key events mentioned in respondents’ I-589 violated due process and was prejudicial). ↩︎
    5. Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987). ↩︎

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