A-C-M-
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: David Cantor, Assistant Chief Counsel
BEFORE: Board Panel: OWEN, GALLOW, and HANSELL, Appellate Immigration Judges.
OWEN, Appellate Immigration Judge:
The Department of Homeland Security (DHS) has filed an interlocutory appeal from the Immigration Judge’s August 26, 2025, decision denying its motion to pretermit the respondent’s applications for asylum under section 208(b)(1)(A) of the Immigration and Nationality Act (INA),
In its motion, DHS sought pretermission of the respondent’s applications because she is subject to the safe third country bar to asylum under section 208(a)(2)(A) of the INA,
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Cuba who illegally entered the United States without inspection on August 8, 2021. DHS served the respondent with a notice to appear the following day and commenced removal proceedings against her by filing the notice to appear with the Immigration Court. The respondent filed an application for asylum, withholding, and CAT protection before the Immigration Judge on April 16, 2022. DHS filed a motion to pretermit the respondent’s application on August 7, 2025, arguing that she is ineligible to apply for asylum and related protection because she may be removed to Ecuador for consideration of those claims pursuant to an asylum cooperative agreement (ACA) between the United States and Ecuador.2
The respondent filed a response in opposition to DHS’ motion in which she argued that (1) DHS waived the pretermission issue; (2) DHS had not shown that Ecuador would accept her; (3) DHS had not shown that Ecuador would provide a full and fair procedure for adjudicating her protection claims; (4) there is generalized violence in Ecuador; (5) she arrived in the United States and applied for asylum before the ACA with Ecuador was signed; (6) it is in the public interest for her to be granted asylum in the United States; and (7) she has established a prima facie case for withholding of removal to Ecuador under the INA and CAT because Ecuador is a Cuban sympathizing country that persecutes Cuban[] desertors [sic]. Her opposition was accompanied by generalized country conditions evidence of
The Immigration Judge denied DHS’ motion to pretermit without prejudice. Purporting to rely on Matter of C-I-G-M- & L-V-S-G-, the Immigration Judge determined that she was precluded from pretermitting the respondent’s asylum and protection applications without first conducting an evidentiary hearing to resolve disputed facts. The Immigration Judge further stated that conducting an evidentiary hearing in a master calendar setting would be inappropriate because she has limited time to do so on her master calendar docket. The Immigration Judge set an individual hearing on the applicability of the ACA bar for March 19, 2030.
II. DISCUSSION
In Matter of C-I-G-M- & L-V-S-G-, we explained that when a respondent claims that the safe third country bar to asylum eligibility should not apply based on a claim of future persecution or torture in the ACA country of removal, an evidentiary hearing must be held only if necessary to resolve disputed facts. 29 I&N Dec. at 296; see also
The Immigration Judge erred in determining that it is necessary to conduct an evidentiary hearing to resolve disputed facts relevant to the safe third country bar in this case. The respondent’s waiver argument raises a legal question and there is no dispute regarding the facts underlying her waiver argument. See Biscayne Beach Club Condo. Ass’n, Inc. v. Westchester Surplus Lines Ins. Co., 111 F.4th 1182, 1185-86 (11th Cir. 2024) (explaining that waiver is a legal issue). The Immigration Judge lacks jurisdiction to consider the respondent’s arguments regarding Ecuador’s
Furthermore, the generalized evidence of country conditions in [Ecuador] submitted with [the respondent’s] response to DHS’ motion is clearly insufficient to satisfy the burden of proof under
When, as here, an alien is subject to an ACA and the record is devoid of evidence showing the alien faces an individualized risk of harm in the ACA country of removal, it is generally unnecessary to hold an evidentiary hearing to resolve the applicability of the safe third country bar to asylum. See Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. at 296 (Because a respondent will generally have no substantial connection to the relevant third country, evaluating a respondent’s claim of future persecution or torture in the third country is more straightforward than undertaking a complex assessment of an asylum applicant’s fear of persecution in his or her home country. (quoting 84 Fed Reg. at 64004)). Under such circumstances, if an Immigration Judge believes there is not enough time to resolve the ACA issue during an abbreviated hearing in a master calendar setting, the Immigration Judge should do so in a written order based on the documentary evidence and arguments presented by the parties.
The Immigration Judge erred in determining it was necessary to hold an evidentiary hearing prior to determining whether the safe third country bar applies in this case because the record does not raise any genuine factual dispute that can only be resolved after taking testimony. Moreover, even if a hearing were to be necessary to resolve some factual dispute, the Immigration Judge’s setting of the case for a hearing on the motion to pretermit nearly 5 years later was unreasonable. The ACA pretermission issue should be addressed before scheduling an individual hearing. We will therefore sustain DHS’ appeal and remand the record for the Immigration Judge to expeditiously determine whether the safe third country bar applies in this case. The Immigration Judge may do so either by written order or during a promptly scheduled master calendar hearing after considering the evidence and arguments presented by the parties.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.