BIA Holds Oral Motion to Pretermit Provides Sufficient Notice of Intent to Remove Under Asylum Cooperative Agreement

The Board of Immigration Appeals has sustained an interlocutory appeal by DHS after an immigration judge denied its motion to pretermit asylum applications filed by a Venezuelan and Colombian family, again based on the safe third country bar under the asylum cooperative agreement with Ecuador. The immigration judge had found that DHS's oral motion to pretermit did not provide adequate notice of its intent to remove the family to Ecuador and, alternatively, that the agreement did not apply absent an implementation plan.

The Board held that an oral motion to pretermit filed at a hearing is sufficient notice of DHS's intent to remove the family under the agreement, and reaffirmed that an immigration judge lacks authority to require proof of an implementation plan, proof that the third country is willing to accept the family, or an assessment of whether the third country offers full and fair procedures. The Board also held that the immigration judge erred in declining to designate Ecuador as the country of removal once DHS indicated its intent to do so. The case was remanded for an expeditious determination of the safe third country bar.

The full text of Matter of E-A-R-M- can be found here: https://www.justice.gov/eoir/media/1451996/dl?inline

BIA Holds DHS Need Not Produce Implementation Instrument to Establish Asylum Cooperative Agreement Applies

The Board of Immigration Appeals has sustained an interlocutory appeal by DHS after an immigration judge denied its motion to pretermit asylum applications filed by a Venezuelan family, based on the safe third country bar under the asylum cooperative agreement with Ecuador. The immigration judge had concluded that DHS failed to produce a separate implementing instrument describing the operating procedures for transfers under the agreement.

The Board held that any subsequent implementation plan contemplated by the agreement is not part of the agreement itself, is not published in the Federal Register notice establishing the ACA and is therefore not a permissible basis for an immigration judge to find the agreement inapplicable. The Board vacated the immigration judge's decision and remanded for an expeditious determination of whether the safe third country bar applies.

The full text of Matter of N-E-R-S- can be found here: https://www.justice.gov/eoir/media/1452016/dl?inline

BIA Finds ACA Bar May Be Resolved Without Evidentiary Hearing Absent Individualized Harm Evidence

The Board of Immigration Appeals has held that an evidentiary hearing is generally unnecessary before applying the safe-third-country bar when the respondent is subject to an asylum cooperative agreement and the record contains no evidence of individualized risk of harm in the ACA country. The case involved a Cuban respondent subject to the U.S.-Ecuador ACA.

The Board sustained DHS’s interlocutory appeal and found that generalized country conditions evidence was insufficient to require a full evidentiary hearing. The Board also emphasized that Immigration Judges lack authority to review the government’s decisions regarding acceptance under an ACA or the adequacy of procedures in the ACA country. The case was remanded for an expeditious ACA determination.

The full text of Matter of A-C-M- can be found here: https://www.justice.gov/eoir/media/1446476/dl?inline

BIA Limits IJ Review of Asylum Cooperative Agreement

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:

https://www.justice.gov/eoir/media/1416811/dl?inline