Pretermission in Asylum Cases
A simple explanation of pretermission, why it happens, and the limited options available after a case is pretermitted — including appeals.
Para la versión en español, click aquí
Pour la version française, cliquez ici
Pretermission means that an Immigration Judge decides an asylum case without allowing the person to have a full hearing or present additional evidence.
This can happen before the asylum seeker has the opportunity to testify or explain their case in detail.
In April 2025, new guidance and court decisions allowed Immigration Judges to pretermit asylum applications in certain situations.
Why Can an Asylum Case Be Pretermitted?
An asylum case may be pretermitted for different reasons, including:
1. Legally Insufficient Application
Even if everything written in the application is taken as true, the judge believes it does not meet the legal requirements for asylum.
2. Incomplete Application
The application is missing information or does not clearly answer the questions required.
3. Asylum Cooperative Agreements (ACA)
The U.S. has agreements with certain countries allowing the government to send asylum seekers to another country to seek protection there instead.
Each agreement has specific rules. For example:
Guatemala: only some Central American nationals
Honduras: only certain Latin American nationals who can enter Honduras without a visa
Uganda: only African nationals
Unaccompanied minors are not included
What is Pretermission in an Asylum Case?
Pretermission is raised by DHS (the government attorney) either:
Orally during a hearing (very common, often at a Master Calendar Hearing), or
Through a written motion filed before a hearing
In practice, DHS often raises pretermission orally, which can take people by surprise.
This moment is critical.
If a person wishes to oppose pretermission, they must speak up before the judge decides.
At this stage, the case is still in Immigration Court.
This is not an appeal.
What Should Someone Say If Pretermission Is Raised?
It depends on the reason, but everyone should say clearly:
I need time to speak with a lawyer about this.
I am required to be given at least 10 days to respond to the DHS motion, and I need all the time possible.
I am afraid to return to my country, and I have the right to present evidence and testify in support of my application.
I am afraid to go to country X, and I need time to respond to the DHS motion.
I prefer to leave voluntarily to another country ("voluntary departure"). Voluntary departure allows you to leave the country without a deportation order. If you do not leave within the time specified by the judge, it automatically converts to a deportation order.
How and When Is Pretermission Raised in Court?
If the judge allows time to respond, RIF, in partnership with CoCounsel NYC, provides a basic opposition template that can be used to formally oppose DHS’s request for pretermission while the case is still in Immigration Court.
This template helps the individual:
Clearly oppose DHS’s motion
State their fear of return
Request the opportunity to present evidence and testify
Put the opposition on the record, especially when pretermission is raised orally
Important:
This template is not an appeal and is not BIA paperwork.
It is used before the judge issues a final decision.
Deadlines Are Extremely Important
If the Immigration Judge orders a written response, the court will set a specific deadline (for example: “Respondent’s response due in 10 days”).
Missing the deadline may result in the judge granting pretermission without reviewing the opposition.
Where Must the Motion Be Sent?
The opposition must be sent to two places:
The Immigration Court (the Judge)
ICE / DHS Office of the Principal Legal Advisor (OPLA) — the government’s attorney. Find your nearest office here.
Sending the motion only to the judge is not enough.
If ICE / OPLA does not receive a copy, the filing may be rejected or ignored.
What Is a Certificate of Service?
A Certificate of Service is a short written statement included at the end of the motion confirming that:
A copy was sent to ICE / OPLA
It was sent the same day it was filed with the court
An accepted delivery method was used
The Certificate of Service usually includes:
Name and address of the ICE / OPLA office served
Date of service
Method of service
Signature
Without a Certificate of Service, the judge may refuse to consider the motion.
Critical Reminder
To be valid, the opposition must:
Be filed on time
Be sent to both the court and ICE / OPLA
Include a Certificate of Service
Failure to meet any of these requirements can seriously harm the case.
Using the Opposition Template (Before a Final Decision)
If the judge grants pretermission, a final order of removal is issued.
Only after a final order does the case become appealable.
Legal options after a final order:
A) Appeal to the Board of Immigration Appeals (BIA)
File Form EOIR-26
Must be received within 30 days
Fee: $1,010 (fee waiver may be requested)
B) Motion to Reconsider or Reopen (Immigration Court)
Separate from an appeal
Different rules and deadlines apply
Important Warning About Appeals
Appealing does NOT mean you will win the case.
An appeal:
Does not guarantee protection
Does not stop removal automatically
Is legally complex and difficult
Requires strong legal arguments
Filing an appeal does not provide certainty or safety. It is only a legal step to ask for review.
This information is for general orientation only. Please consult a lawyer for your specific case, or join our Thursdays legal consultations.
If the Judge Grants Pretermission, What Happens Next?
Need Help? Join Our Free Legal Consultations
Do you have questions about how to fill out these documents, or what to expect at your hearing?
We offer free online legal consultations every Thursday from 12–1 PM (New York time). You can speak directly with an immigration attorney. Interpreters are available in Spanish, French, and Russian.