BIA Allows Judges to Quickly Dispose of Non-Meritorious Asylum Claims

The nation’s immigration judges (IJs) are facing a massive backlog of just under 3.8 million cases, the majority (almost 2.4 million) of them asylum applications. A September 11 decision from the Board of Immigration Appeals (BIA) may provide some backlog relief, as it finds IJs “are not required to hold merit hearings on applications that are incomplete or where an applicant is ineligible for relief and may pretermit those applications”. While it’s a novelty in immigration court, other tribunals commonly resolve claims without full evidentiary trials.

Respondents’ Right to Testify at their Asylum and Withholding Hearings

In its 1989 decision in Matter of Fefe, the BIA held asylum applicants must “testify under oath regarding” their applications, that is “take the stand, be placed under oath, and be questioned as to whether the information in” their written applications are “complete and correct”.

The BIA expanded on that precedential decision in 2014, in Matter of E-F-H-L-.

There it held applicants for asylum and associated protections are “entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief”.

After his case was remanded to the IJ for a hearing, however, E-F-H-L- withdrew his asylum application and his case was closed while USCIS adjudicated an immediate relative visa petition filed on his behalf. In 2018, then-Attorney General Jeff Sessions vacated the BIA’s decision and ordered the case be recalendared.

Given that vacatur, Matter of E-F-H-L- has no precedential effect, leaving Matter of Fefe as the sole decision requiring evidentiary hearings for respondents’ relief applications.

Section 240 of the INA

Note that the INA has changed significantly since 1989.

Most notably, Congress eliminated “exclusion proceedings” (under which Fefe’s case was considered) and “deportation proceedings” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), creating in their place a single, unified procedure for determining removability, “removal proceedings” under section 240 of the INA.

As I recently explained, section 240 contains rules IJs must follow in determining whether aliens in removal proceedings (“respondents”) are removable and whether those respondents are eligible for “relief” from removal (like asylum and withholding) that would allow them to remain here.

Section 240(b)(4) of the INA delineates respondents’ rights in those proceedings, most notably to representation “at no expense to the Government” and to “have a reasonable opportunity to examine the evidence against” them, “to present evidence on” their “own behalf, and “to cross-examine witnesses presented by the Government”.

Notably absent is any right to “testify” in support of a relief application under oath, though as later amended, section 240(b)(4)(C) of the INA specifically permits IJs to base credibility determinations on “written and oral statements … not under oath”.

Matter of H-A-A-V-

Which brings me to the BIA’s decision September 11 decision in Matter of H-A-A-V-.

By way of background, removal proceedings in immigration court consist of both “master calendar hearings” (akin to arraignments and scheduling hearings in criminal cases) and “merits hearings” (which are like trials), and at his “initial master calendar hearing” before the IJ, H-A-A-V conceded removability.

He thereafter filed, through counsel, an Application for Asylum and Withholding of Removal (Form I-589) “based on extortion by criminal gangs in Peru”.

At the next master calendar hearing in the case on May 8, 2025, ICE counsel asked the IJ to “pretermit” that application, that is to deny it without holding a formal merits hearing.

After the parties confirmed “there were no factual issues in dispute”, the IJ concluded H-A-A-V- “had not established prima facie eligibility for asylum or related relief, pretermitted his applications, and ordered him removed to Peru.”

H-A-A-V- appealed, contending the IJ’s decision was contrary to precedent (under Matter of Fefe and Matter of E-F-H-L-) and that the IJ “violated his right to due process of law and his statutory and regulatory rights by pretermitting his applications for relief”.

In its decision, the BIA examined current section 240(b)(4) of the INA and the regulations implementing it, most notably 8 C.F.R. § 1240.11(c)(3)(iii) (2025), which states an applicant for asylum and withholding “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf”.

Unlike in Matter of Fefe, however, the BIA in Matter of H-A-A-V- concluded that neither the regulation nor section 240(b)(4) of the INA “require[s] a full evidentiary hearing if there are no factual issues in dispute”.

That was particularly true, the BIA concluded, given the IJ confirmed with both counsels “that there were no disputed issues of fact” and allowed respondent’s counsel to expand on the application and explain “why a full evidentiary hearing was necessary” in that case — which that lawyer failed to do.

With respect to the Board case law barring pretermission without a formal hearing, the BIA held Matter of E-F-H-L- is no longer precedent since it’s been vacated, and noted that in Ramirez v. Sessions, the Eighth Circuit in 2018 questioned the “current relevance of” Matter of Fefe, given that the “regulations applied in” that case “were later rescinded and replaced” by IIRIRA.

After deciding that the IJ correctly held H-A-A-V- wasn’t eligible for asylum or withholding, the BIA affirmed that decision.

More significantly, however, the Board set a precedent IJs can use to dispense with facially meritless claims.

That’s important because as I have explained in the past, some if not many aliens file asylum applications more as an opportunity to live and work in the United States for the period (often years) it takes for their asylum claims to be heard than to actually seek asylum per se.

Properly applied, Matter of H-A-A-V- takes that dilatory option off the table, while placing both aliens and their counsel on notice that applications for asylum and withholding must be full and complete when they are filed.

April 11 Memo from Sirce Owen

Likely not coincidentally, ICE’s request to pretermit was made shortly after Sirce Owen, acting director of the Executive Office for Immigration Review (“EOIR”, the DOJ component that oversees the BIA and immigration courts), issued an April 11, 2025, memo captioned “Pretermission of Legally Insufficient Applications for Asylum”.

In that memo, Owen suggested that “adjudicators may properly consider pretermission of a legally deficient asylum application”, though she was quick to make clear that “the ultimate decision on pretermission remains with the presiding adjudicator”.

Federal Civil Procedure

Finally, note that Matter of H-A-A-V- now brings the immigration court in line with procedures in Article III federal courts that allow judges to resolve cases without full evidentiary trials.

As the Board noted in a footnote, judges in federal civil proceedings can grant motions to dismiss complaints under Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP) if the court “assuming that all factual allegations contained in the complaint are true and giving the plaintiff the full benefit of the doubt, determines that the plaintiff has failed to state a claim upon which relief can be granted”.

Similarly, Rule 56 of the FRCP states a “court shall grant summary judgment” in a federal civil matter “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law”.

As the BIA explained, summary judgment is appropriate under Rule 56 where the court “considering the facts in the light most favorable to the nonmoving party” determines “there is no genuine dispute as to any material facts that require a trial or evidentiary hearing and that a party is entitled to judgment as a matter of law”. Sound familiar?

It’s not just Article III courts, either.

Administrative law judges in the Office of the Chief Administrative Hearing Officer (OCAHO), an EOIR tribunal that hears employer sanctions, immigration-related discrimination, and document fraud claims, may “enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue of material fact and that a party is entitled to summary decision”.

Backlog Relief

The BIA’s decision Matter of H-A-A-V- frees immigration judges from holding often lengthy merits hearings on incomplete or non-meritorious asylum applications, allowing them to focus on more serious claims. That will provide much-needed backlog relief. Aliens — and their lawyers — should take heed.