BIA Opinion Sets the Stage for Removals under Honduras ‘Safe Third Country’ Agreement

On October 31, the Board of Immigration Appeals (BIA) — the DOJ appellate tribunal that reviews immigration judge (IJ) decisions — issued an opinion in Matter of C-I-G-M- & L-V-S-G-. That opinion lays out a roadmap for how IJs should examine DHS’s efforts to remove aliens pursuant to safe third country “Asylum Cooperative Agreements” (ACAs), in this case, an ACA entered into with Honduras on March 10. Expect more such agreements, which will help alleviate the burden the United States currently bears in dealing with hundreds of thousands of migrants from countries near and far who arrived over the past four years seeking “asylum” at our borders and ports — and deter new migrants from coming.

The “Safe Third Country” Bar

Under section 208(a)(1) of the Immigration and Nationality Act (INA), aliens who are “physically present in the United States” or who arrive in this country (legally or otherwise) “may apply for asylum”.

What the INA giveth, however, the INA may taketh away, and section 208(a)(2) of the INA, “Exceptions”, bars certain aliens from applying for asylum under section 208(a)(1).

The most common exception, at section 208(a)(2)(B) (“Time limit”), pretermits asylum applications filed by aliens who failed to apply for protection within one year of arriving in this country, the “One-Year Bar”.

Then there’s section 208(a)(2)(C) of the INA, “Previous asylum applications”. It prevents aliens who have previously applied for and been denied asylum from applying for that protection again.

There are exceptions to those exceptions, however, for “Changed circumstances” under section 208(a)(2)(D) of the INA.

They waive the one-year bar if aliens establish “extraordinary circumstances relating to the delay in filing” of their applications within that one-year period and also allow aliens to file subsequent asylum applications upon a showing of “changed circumstances which materially affect the applicant’s eligibility for asylum”.

Most salient to Matter of C-I-G-M- and L-V-S-G-, however, is section 208(a)(2)(A) of the INA, “Safe third country”. That provision bars an alien from applying for asylum:

if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

There are three separate elements to that “safe third country” bar: (1) a “bilateral or multilateral agreement” that allows the alien to be sent to a third country; (2) access in the third country “to a full and fair procedure for” seeking asylum or equivalent protection; and (3) the absence of a determination “it is in the best interest” of the United States for the alien to seek asylum here.

Regulatory Implementation of the Safe Third Country Bar

Two separate regulatory provisions implement the safe third country bar: 8 C.F.R. § 1240.11(g) and 8 C.F.R. § 1240.11(h).

Subsection (g) of that regulation applies solely to the U.S.-Canada Safe Third Country Agreement (STCA), which has been in effect since December 2004 (when it only applied to inadmissible aliens at the two countries’ respective ports of entry) and was expanded in March 2023 to cover third-country nationals crossing illegally from one of the STCA countries to the other.

Subsection (h), on the other hand, is more general, implementing all other ACAs other than the STCA. It was added to 8 C.F.R. § 1240.11 through publication of an interim final rule in November 2019 (when the Trump I administration was ramping up its ACA efforts) and amended in March 2023 under the Biden administration (which never entered any ACA agreements and abrogated the ones entered into under Trump).

The Trump I-era rule makes clear that subsection (h) is to be applied prospectively, that is, only to aliens at ports of entry or who crossed between the ports on or after November 19, 2019.

Paragraph (h)(2) of that regulation requires IJs to “determine whether under the relevant 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”. Here’s how that process works.

If the IJ finds that the ACA either doesn’t apply to the alien or doesn’t prevent the alien from seeking asylum in the United States (due to an exception or otherwise), the alien can file an application here.

But even if the IJ concludes that the relevant ACA applies to the alien and that the alien is not subject to an exception in the ACA, the alien can still seek protection here if the alien proves “it is more likely than not that he or she would be persecuted on account of a protected ground or tortured in the third country”.

That exception is the focus of the BIA’s opinion in Matter of C-I-G-M- and L-V-S-G-.

Agreement Between the United States and Honduras

On July 8, DHS published an ACA captioned “Agreement Between the Government of the United States of America and the Government of the Republic of Honduras for Cooperation in the Examination of Protection Requests”, which was signed on March 10, along with diplomatic notes exchanged between the two countries on June 25.

By its terms, that ACA does not apply to unaccompanied alien children, Honduran nationals or “habitual residents of Honduras”, individuals “involved in” certain crimes, and subjects of “Interpol notifications”.

There was a temporal restriction in the original agreement under which the ACA applied only to aliens who came here after its effective date, but it was removed under the terms of the diplomatic notes. The aforementioned alien classes, however, still cannot be sent to Honduras under the ACA.

C-I-G-M- and L-V-S-G-

The alien respondents in this case, C-I-G-M- and L-V-S-G-, are Guatemalan nationals who entered illegally in August 2023 and were placed into removal proceedings directly thereafter.

C-I-G-M- is the lead respondent (it appears that the pair are mother and child), and a month after they entered, she filed an application for asylum, statutory withholding under section 241(b)(3) of the INA, and protection under the Convention Against Torture (CAT), claiming a fear of harm by “neighbors and other bad men” in Guatemala.

The application was apparently scheduled for a hearing, but as the BIA explained:

DHS filed a motion to pretermit the lead respondent’s application on August 7, 2025, arguing that she is ineligible to apply for asylum and related relief because she may be removed to Honduras for consideration of those claims pursuant to an agreement between the United States and Honduras.

In response, the respondents filed a brief contending that they would be subject to persecution in Honduras as well, “because they are refugees fleeing from threats and violence against their family in Guatemala”.

It does not appear that C-I-G-M- and L-V-S-G- have ever been to Honduras, and the respondents didn’t contest the fact that C-I-G-M- is subject to the Honduras ACA.

Their sole basis for opposing the pretermission of their U.S. application was that fear of harm as refugees in Honduras, and the only document they offered to support that claim was a U.S. State Department document, the “2023 Country Reports on Human Rights Practices: Honduras”.

The IJ denied DHS’s motion to pretermit the pair’s asylum application, concluding that the lead respondent had “present[ed] a fear of travel to Honduras … which is an exception” to the safe third country asylum bar.

Matter of C-I-G-M- and L-V-S-G-

DHS appealed that order, as the BIA explained, for its review of whether the IJ “applied the correct analysis in determining that the safe third country bar to asylum did not apply to the respondent”.

Long story short: The IJ didn’t apply the correct analysis but should be cut some slack, because this is the first precedent opinion explaining how the third-country ACA exception in section 208(a)(2)(A) of the INA and 8 C.F.R. § 1240.11(h) should be applied.

As a preliminary matter, the November 2019 rule reserved for the attorney general’s own judgment the determination of whether an alien subject to an ACA “would have access to a full and fair procedure” in the third country, and the regulation leaves it to DHS to determine whether “it is in the public interest” (or not) for an alien to seek asylum here notwithstanding the availability of an ACA.

Therefore, the BIA held, once the IJ receives an ACA notification in a pending case from DHS, the IJ’s role is exclusively to ensure the alien has “a reasonable opportunity to satisfy his or her burden to show by a preponderance of the evidence that the safe third country bar does not apply” because the alien “will more likely than not be persecuted or tortured in the relevant third country”.

Evaluating such a claim, the BIA concluded, “is more straightforward than undertaking a complex assessment of an asylum applicant’s fear of persecution in his or her home country” because the alien “will generally have no substantial connection to the relevant third country”.

Or, as DHS and DOJ explained in the November 2019 rule:

Because the ACA country of removal did not prompt the alien’s claim, the process for determining simply whether to send the alien to a third country for that consideration is reasonably more minimalistic than the requisite procedures for deciding asylum and withholding of removal claims on the merits.

The BIA suggests that IJs should usually be able to evaluate the harm an alien subject to an ACA notification may face in the third country at a master calendar hearing (the immigration court equivalent to a docket call in criminal court) instead of at a full-blown evidentiary hearing.

In essence, the review process the BIA lays out in Matter of C-I-G-M- and L-V-S-G- for weighing a persecution or torture claim by an ACA alien is akin to the “credible fear” screening process for asylum and torture claims by aliens subject to expedited removal under section 235(b)(1) of the INA.

In fact, the November 2019 rule specifically uses the term “threshold screening” to describe that process and alludes to expedited removal in describing how ACA persecution and torture claims should be assessed.

“If the respondent meets his or her burden to demonstrate that the” safe third country bar to asylum in section 208(a)(2)(A) of the INA “does not apply”, the BIA explains, the IJ “should proceed to consider the merits of the respondent’s asylum and protection claims”.

If, however, “the respondent does not meet his or her burden, the safe third country bar applies, and there is no basis for the Immigration Judge to further consider asylum”.

The BIA concluded that C-I-G-M- and L-V-S-G- failed to present evidence that they’ve “ever been to Honduras or that anyone in Honduras would target them for harm based on their Guatemalan nationality or their alleged status as individuals ‘fleeing from threats and violence against their family in Guatemala’”.

The “generalized evidence of country conditions in Honduras submitted with their response to DHS’ motion”, the BIA held, was “clearly insufficient to satisfy the burden of proof”, and on those bases, sustained DHS’s appeal.

Expect Trump II to enter into more ACAs as it attempts to plow through the hundreds of thousands of pending immigration-court asylum cases it was left by the Biden administration’s migrant release policies. The BIA has provided immigration judges with a pretty clear roadmap on how to handle them.