Board of Immigration Appeals decision on the application of ACAs in removal proceedings

In the matter of C-I-G-M- & L-V-S-G-, the respondents, a mother and her minor child, are natives and citizens of Guatemala who entered the United States without inspection on August 23, 2023. The following day, the Department of Homeland Security (DHS) served them with notices to appear, charging them as removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"). The lead respondent (the mother) filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations on September 28, 2023. Her claim centered on a fear of harm from "neighbors and other bad men" in Guatemala, stemming from threats and violence against her family. The minor child was included as a derivative beneficiary on the asylum application but did not file independent claims for withholding or CAT relief, consistent with BIA precedent in Matter of A-K-, 24 I&N Dec. 275, 279–80 (BIA 2007), which holds that derivatives cannot assert such claims separately.

On August 7, 2025, DHS filed a motion to pretermit (i.e., dismiss without prejudice) the lead respondent's applications for relief. DHS argued that she was ineligible for asylum and related protections because she could be removed to Honduras under the U.S.-Honduras asylum cooperative agreement (“ACA”), where her claims could be adjudicated. The ACA, originally signed in 2019 but implemented following ratification on March 10, 2025 (with amendments effective June 25, 2025), designates Honduras as a "safe third country" for certain asylum seekers transiting through it enroute to the United States. The respondents, through counsel, opposed the motion, asserting that they faced persecution in Honduras "because they are refugees fleeing from threats and violence against their family in Guatemala." They did not dispute the ACA's applicability to the lead respondent, nor did they provide evidence of prior travel to Honduras. Their opposition relied solely on generalized assertions and the U.S. Department of State’s 2023 Country Report on Human Rights Practices for Honduras, which highlighted widespread violence, corruption, and risks to vulnerable groups but did not address the respondents' specific circumstances.

The Immigration Judge (IJ) denied DHS's motion on August 26, 2025, finding that the respondent "through counsel presents a fear of travel to Honduras . . . which is an exception to the [asylum cooperative agreement]." The IJ's rationale hinged on a broad interpretation of the "exception" for likely persecution or torture in the third country, without requiring individualized evidence. DHS promptly filed an interlocutory appeal, which the BIA accepted to resolve recurring interpretive issues in ACA cases, pursuant to 8 C.F.R. § 1003.1(d)(1) and Matter of M-D-, 24 I&N Dec. 138, 139 (BIA 2007). The BIA solicited supplemental briefing from both parties, received responses, and ultimately sustained the appeal on October 31, 2025, vacating the IJ's decision and remanding the record for further proceedings.

2. Issues

The BIA decision grapples with procedural and substantive challenges in applying the "safe third country" bar under ACAs to asylum seekers in removal proceedings. The primary issues are:

• Threshold Applicability of the Safe Third Country Bar: Whether an IJ must determine the bar's applicability—under section 208(a)(2)(A) of the INA and 8 C.F.R. § 1240.11(h)—prior to and separate from evaluating the merits of an asylum, withholding, or CAT claim. This includes the sequence of proceedings when DHS invokes an ACA.
• Burden and Standard of Proof for Exceptions: What evidence a respondent must proffer to establish an exception to the bar, specifically the preponderance-of-the-evidence standard for showing that they "will more likely than not" face persecution on a protected ground or torture in the designated third country (8 C.F.R. § 1240.11(h)(2)(iii)). Relatedly, whether generalized country conditions or counsel's unsworn representations suffice.
• Retroactivity and Scope of ACAs: Whether the U.S.-Honduras ACA, implemented after the respondents' entry and asylum filing, applies retroactively to ongoing proceedings, and whether IJs have jurisdiction to assess broader exceptions like "full and fair procedures" in the third country or "public interest" overrides (reserved to the Attorney General and DHS Secretary under 8 C.F.R. § 1240.11(h)(3)).
• Procedural Authority of IJs: The extent of an IJ's delegated authority under the ACA regulations to conduct abbreviated hearings on bar applicability, without encroaching on executive removal decisions (see Matter of A-S-M-, 28 I&N Dec. 282 (BIA 2021)).

These issues arise from the tension between expeditious enforcement under ACAs and due process protections for asylum seekers, particularly in light of the 2019 ACA Rule (84 Fed. Reg. 63994) and its 2025 ratification (90 Fed. Reg. 42309).

3. Laws:

8 C.F.R. § 1003.1(d)(1)

This regulation outlines the general powers of the Board of Immigration Appeals, including the requirement to resolve questions in a timely, impartial, and consistent manner. 

8 C.F.R. § 1240.11(h)

This provision addresses procedures for credible fear screenings in removal proceedings, including referrals for asylum or withholding of removal when an alien expresses fear of return. 

Section 208(a)(2)(A) of the INA (8 U.S.C. §1158(a)(2)(A))

This statutory bar to asylum eligibility prohibits applications if the alien can be removed to a third country under a safe third country agreement where they have access to a full and fair asylum procedure (with exceptions for unaccompanied children). 

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (8 U.S.C. § 1182(a)(6)(A)(i))

2019 ACA Rule (84 Fed. Reg. 63994)

This interim final rule implements bilateral and multilateral asylum cooperative agreements under the INA, establishing procedures for determining eligibility based on transit through third countries. 

90 Fed. Reg. 42309

This Federal Register notice, published on June 27, 2025, pertains to procedures for credible fear, reasonable fear, and similar screenings under the asylum process. 

4. Decision

In a precedential opinion authored by Board Member Board Member Ana S. Liss, joined by Board Members Linda S. Wendtland and John W. Guendelsberger, the BIA sustained DHS's interlocutory appeal, reversed the IJ's denial of the motion to pretermit, and remanded the case. The core holdings are:

• IJs must conduct a preliminary, bifurcated assessment of ACA applicability before addressing the substantive merits of relief claims. This involves verifying if the respondent is subject to the agreement and, if so, evaluating exceptions in a streamlined manner.
• The burden rests squarely on the respondent to prove, by a preponderance of the evidence, eligibility for an exception—such as likely persecution or torture in the third country—to overcome the safe third country bar and proceed to a full asylum merits hearing.
• The IJ committed reversible error by denying pretermittal based on unsubstantiated "fear of travel" assertions and generalized country reports, which failed to meet the required standard. No opinion was rendered on the respondents' underlying removability or merits claims.

On remand, the IJ was instructed to: (1) reassess the ACA bar with proper evidence; (2) establish removability if uncontested; and (3) conduct further proceedings as needed, including an abbreviated hearing if the respondent proffers credible evidence of third-country risks.

5. Analysis

The BIA's reasoning reinforces a structured, executive-deferential framework for ACAs, prioritizing efficiency in border management while cabining IJ discretion to threshold screenings. Drawing from the INA's safe third country provision (8 U.S.C. § 1158(a)(2)(A)), the Board underscores that asylum ineligibility triggers when a removable alien can be sent to a third country offering non-threatened refuge and fair procedures—exceptions being narrow and applicant-borne. The 2019 ACA Rule operationalizes this via 8 C.F.R. § 1240.11(h), mandating DHS notice of third-country removal intent (8 C.F.R. § 1240.8(d)), followed by respondent rebuttal. The BIA analogizes this to other bars (e.g., firm resettlement in Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), justifying bifurcation to avoid wasteful merits hearings for presumptively barred claims.

Critically, the decision rejects low evidentiary thresholds: Generalized violence in Honduras (e.g., gang activity, impunity per the 2023 State Report) does not equate to "more likely than not" persecution absent ties to protected grounds like race, religion, or nationality (Setiadi v. Gonzales, 437 F.3d 710, 714 (8th Cir. 2006); Nadeem v. Holder, 599 F.3d 869, 873–74 (8th Cir. 2010)). The respondents' "refugee" label and familial threats from Guatemala were deemed irrelevant without Honduras-specific, individualized proof—e.g., no evidence of targeted returnee risks. This aligns with Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), endorsing abbreviated proceedings (documentary focus, no cross-examination unless warranted) to expedite resolutions (84 Fed. Reg. at 64004).

On retroactivity, the Board invokes Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994), holding the ACA's prospective application to pending cases lawful, as it alters future relief without divesting vested rights (Wanyama v. Holder, 698 F.3d 1032, 1037 (8th Cir. 2012)). IJs lack jurisdiction over "full and fair" or public interest exceptions (Matter of H-M-V-, 22 I&N Dec. 256, 258 (BIA 1998)), deferring to DHS/AG per the Rule's allocation (84 Fed. Reg. at 63997).

Implications are far-reaching: This precedent streamlines ACA enforcement, potentially accelerating removals for thousands of Central American asylum seekers (e.g., Guatemalans via Honduras), reducing U.S. docket backlogs but raising due process concerns for unconnected returnees facing generalized harms. It bolsters Trump-era policies amid 2025 revivals, yet invites circuit challenges on burden-shifting's fairness. Overall, the ruling promotes uniformity, curbing IJ overreach while upholding statutory intent for cooperative burden-sharing in migration crises

Link to Decision: https://www.justice.gov/eoir/media/1416811/dl?

Citation: 29 I&N Dec. 291 (BIA 2025)