Tag - pretermission

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&NDec. 233 (BIA 2025). Since April 2025 Immigration judges have been explicitly encouraged to pretermit asylumapplications 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 pretermitapplications 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 therespondent. 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