A federal Board of Immigration Appeals ruling has paved the way for courts to more easily toss out asylum cases and instead deport applicants to a “third country” they barely know. The decision fundamentally alters the adjudication sequence and burden of proof in asylum hearings, with immediate consequences for thousands of pending cases.
What changed
The Board of Immigration Appeals overhauled the process of sending an asylum seeker to a third country, allowing DHS to send asylum seekers to countries through which they did not pass en route to the U.S., and also requiring immigration courts to consider whether asylum seekers can be sent to a third country before hearing their cases for remaining in the U.S.
While Joe Biden suspended most third country agreements during his presidency, Trump, upon returning to office in January, revived them as a means to limit asylum applications and facilitate deportations. The list of countries willing to accept the deportees is still growing, though not all have signed formal “safe third country” agreements.
The ruling may not impact those who filed for asylum before third country agreements were forged.
Why it matters
The new sequencing rule inverts traditional asylum procedure. Under the BIA’s order, immigration courts must resolve third-country deportation motions before conducting a full merits hearing on an applicant’s claim to remain in the United States.
This creates a critical strategic problem for immigration practitioners. Attorneys now have limited time to argue that their clients could face “persecution or torture” in a third country they have had minimal contact with—akin to proving a negative. If the government prevails on the third-country motion, the applicant will be sent to that country without an opportunity to make his case for remaining in the U.S.
The ruling has the potential to affect the cases of thousands of immigrants who entered the asylum process since 2019. The Department of Homeland Security is using its extra power inconsistently, moving to send some asylum seekers to third countries while making more traditional motions in other cases.
Way forward
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Review all pending asylum cases to determine whether your clients are subject to third-country deportation eligibility under the new BIA rule. Prioritize those filed after third-country agreements were established.
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File early opposition briefs to DHS third-country motions, focusing on country conditions, torture risk, and whether your client passed through the designated country en route to the U.S. Timing is critical given the compressed adjudication window.
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Preserve the record on your client’s fear of the proposed third country. Testimony from the principal applicant or supporting declarations from experts on country conditions will be essential at the third-country stage.
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Monitor DHS motion patterns in your jurisdiction. Inconsistent application may support challenges or appellate arguments about arbitrary enforcement.
Disclaimer
This article summarizes publicly reported information about immigration appeals board guidance and is not legal advice. The Fola platform is a software publisher, not a law firm. You should not rely on this summary as legal counsel; consult a licensed immigration attorney about your specific case. Policy can change without notice. Always verify current guidance against the primary source and applicable regulations before making filing or litigation decisions.