E-A-R-M-
FOR THE RESPONDENTS: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Luis Zupo, Counsel
BEFORE: Board Panel: RADICS, Deputy Appellate Immigration Judge, OWEN and GALLOW, Appellate Immigration Judges.
OWEN, Appellate Immigration Judge:
The Department of Homeland Security (“DHS“) has filed an interlocutory appeal from the Immigration Judge‘s March 24, 2026, decision denying its motion to pretermit the respondents’ applications for asylum and withholding of removal under sections
In its motion, DHS sought pretermission of the respondents’ applications because the respondents are subject to the safe third country bar to asylum under section
I. FACTUAL AND PROCEDURAL HISTORY
The adult female respondent and the minor rеspondents are natives and citizens of Venezuela. The adult male respondent is a native and citizen of Colombia. The respondents illegally entered the United States without inspection on April 3, 2024. DHS served each respondent with a notice to аppear and commenced removal proceedings against them by filing the notices to appear with the Immigration Court. The adult respondents filed applications for asylum, withholding of removal, and CAT protection before the Immigration Judge оn September 13, 2024. DHS orally moved to pretermit the respondents’ applications at a hearing on January 28, 2026, arguing that the respondents are ineligible to apply for asylum and related protection because they may be removed to Ecuador for consideration of those claims pursuant to an asylum cooperative agreement (“ACA“) between the United States and Ecuador.3
The respondents filed an opposition to DHS’ motion in which they argued that ACAs are impermissibly retroactive аnd that Ecuador is not a safe third country. On March 6, 2026, the Immigration Judge issued a scheduling order requiring DHS to (1) affirm whether it intended to remove the respondents to Ecuador for the adjudication of their asylum and protection claims; (2) if so, specify the statutory basis under section
The Immigration Judge denied DHS’ motion to pretermit, concluding that because DHS has not provided notice of its intent to remove the respondents to Ecuador for the adjudication of their asylum and protection claims, there is no disputed issue for the Immigration Judge to resolve and therefore no need for the Immigration Judge to determine the applicability of the safe third country bar. In the alternative, the Immigration Judge found that he could not determine whether the ACA with Ecuador applies to the respondents and it would be improper for him to designate Ecuador as a country of removal.
On appeal, DHS argues that the Immigration Judge exceeded his regulatory authority and did not follow the correct procedures for adjudicating motions to prеtermit based on an ACA. Whether the facts establish that the safe third country bar to asylum applies is a legal question we review de novo. See
II. DISCUSSION
This case involves the safe third country bar to asylum under section
Under the safe third country bar to asylum, an alien is ineligible to apply for asylum in the United States:
if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreemеnt, 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 proteсtion, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.
The United States entered into an ACA with Ecuador on November 17, 2025. See
A. Notice of Intent to Remove to a Safe Third Country
When DHS, in a motion to pretermit, provides an alien with proper notice of its intent to remove him or her to a safe third country for consideration of an asylum and protection claim under the ACA with that сountry, the burden shifts to the alien to show by a preponderance of the evidence that the ACA does not apply. Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. at 295. The relevant statutory and regulatory provisions ensure that the alien has a reasonable opportunity to present evidenсe and respond to any evidence presented by DHS. Id.
In evaluating whether the respondents have met this burden, the Immigration Judge‘s authority is limited by regulation. The Immigration Judge may determine: (i) whether the agreement does not apply to the respondents or prеclude them from applying for asylum; (ii) whether the respondents qualify for an exception specified in the published Federal Register document setting out the ACA and its exceptions; and (iii) whether the respondents have demonstrated that it is more likely than not thаt they will be persecuted on account of a protected ground or tortured in Ecuador.
The Immigration Judge erred in finding that DHS did not provide the resрondents with notice of its intent to remove them to Ecuador for the adjudication of their asylum and protection claims. “DHS must provide oral or written notice that it intends to remove the respondent to the relevant third country for consideration of his or her asylum claim.” Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. at 295. See also Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,
B. Alternative Findings
The Immigration Judge alternatively determined that the ACA does not apply to the respondents because DHS did not indicate that it intends to transfer them to Ecuador and there is no implementation plan between the United States and Ecuador. This exceeds the scope of the Immigration Judge‘s authority. As we stated in Matter of C-I-G-M- & L-V-S-G-, 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. 29 I&N Dec. at 295 n.4. The Immigration Judge also does not have the authority to determine whether the respondent will have access to full and fair procedures in the third country. Id. at 298.
The Immigration Judge‘s reliance on the lack of an implementation plan is misplaced, as any subsequent imрlementation plan is not a part of the ACA itself and is not included in the Federal Register document setting forth the ACA and its exceptions. See
Finally, the Immigration Judge erred in declining to designate Ecuador as a country of removal once DHS indicated its intent to remove the respondents there based on the ACA. See Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. at 297 (“The Immigration Judge should order the respondent removed to thе relevant third country.“). Under
III. CONCLUSION
We conclude that the Immigration Judge exceeded his regulatory authority and did not follow the correct procedures for deciding motions to pretermit based on an ACA. 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.
Accordingly, the following orders will be entered.
ORDER: DHS’ interlocutory appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court for further prоceedings consistent with the foregoing opinion and for the entry of a new decision.