The Department of Homeland Security has issued new guidance directing its immigration attorneys to seek early dismissal of asylum claims they determine are legally insufficient, effective immediately. Attorneys with U.S. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) are expected to seek dismissal of asylum applications they determine fail to meet the legal standard on their face by filing motions to pretermit in immigration court.
What changed
A motion to pretermit asks an immigration judge to deny an asylum application before a full merits hearing because the government argues the application is legally insufficient. Immigration judges ultimately decide whether to grant those motions. The guidance is intended to expedite the adjudication of asylum claims that satisfy the legal requirements while allowing the government to challenge deficient applications earlier in the immigration court process.
The directive applies to all OPLA cases involving facially insufficient asylum claims and takes effect immediately, with no transition period.
Why it matters
For practitioners defending asylum seekers, this means expect ICE to file more motions to pretermit at early stages of removal proceedings. This tactic allows the government to challenge deficient applications earlier in the immigration court process rather than waiting for full merits hearings. Immigration judges retain discretion to grant or deny these motions—they are not automatic dismissals.
Understanding the government’s definition of “legally insufficient” on its face will become critical. You’ll need to identify and cure facial defects in asylum applications quickly, particularly around elements the government believes fail to meet statutory standards. Documentation, testimony sequencing, and pre-hearing briefing on legal sufficiency become more important under this regime.
Way forward
- Review pending asylum cases now for facial legal deficiencies before ICE files a pretermit motion. Supplement records or refile if necessary.
- Prepare responsive briefing on pretermit motions. Emphasize that immigration judges have independent discretion to deny these motions and hear the merits, and challenge any assertion that the claim is facially deficient.
- Document all client-provided evidence thoroughly in the I-589. Facial insufficiency often turns on whether the record itself (as opposed to testimony) contains the key elements; beef up written support at the outset.
- Monitor OPLA litigation patterns. Watch for which types of asylum claims ICE targets most under this guidance, and adjust case preparation accordingly.
Disclaimer
This article is provided for informational purposes only and is not legal advice. Fola is a software company, not a law firm. You should not rely on this article to make legal decisions about your immigration matter. Consult a licensed immigration attorney to understand how this guidance affects your specific case. Policy can change without notice. Always verify the information in this article against the primary source linked above.