The Board of Immigration Appeals has limited an Immigration Judge’s review of the applicability of an asylum cooperative agreement (ACA). Under the regulation, an Immigration Judge is required to “determine whether under the relevant [ACA] agreement the alien should be removed to the third country, or whether the alien should be permitted to pursue asylum or other protection claims in the United States.” 8 C.F.R. § 1240.11(h)(1). If an alien is “subject to the terms of” one or more ACAs and has not demonstrated that the safe third country bar does not apply, the Immigration Judge shall order the alien “removed to the relevant third country in which the alien will be able to pursue his or her claims for asylum or protection against persecution or torture under the laws of that country.” 8 C.F.R. § 1240.11(h)(4).
“In applying the safe third country bar, the authority delegated to Immigration Judges by the regulation is limited to determining whether any of the conditions discussed in 8 C.F.R. § 1240.11(h)(2) apply so as to render the relevant ACA inapplicable to the particular respondent. Immigration Judges do not have authority to make the determination required under section 208(a)(2)(A) of the INA as to whether ‘the alien would have access to a full and fair procedure’ in the third country because the Attorney General has expressly reserved that statutory authority. Similarly, Immigration Judges lack authority to determine whether it is in the public interest for an alien subject to an ACA to pursue asylum in the United States because section 208(a)(2)(A) of the INA, 8 U.S.C. § 1158(a)(2)(A), ‘reserves to the Secretary [of Homeland Security] or [her] delegates the determination whether it is in the public interest for the alien to receive asylum in the United States.’” “Immigration Judges may not require DHS to demonstrate that an ACA country of removal is willing to accept a respondent who is subject to the terms of an ACA.”
“[I]f a respondent subject to an ACA claims a fear of persecution or torture in a relevant third country, but has no substantial connection to that country, an Immigration Judge should typically be able to resolve the applicability of the safe third country bar without conducting a full evidentiary hearing.”
What the Board didn’t discuss is the fact that Honduras has only agreed to accept 10 people per month under the ACA. https://www.state.gov/wp-content/uploads/2025/09/25-625-Honduras-Migration-and-Refugees-JIP.pdf. Thus, requiring IJs to order asylum applicants removed to Honduras without any proof that they will be accepted by Honduras, effectively reads the right to apply for asylum out of the statute.
The full text of Matter of C-I-M-G- & L-V-S-G- can be found here: