Asylum seekers in the U.S.A. this article is for you. Fighting asylum in immigration court just got a lot harder in the U.S. and that is because, the Board of Immigration Appeals (BIA) who presides over the lower immigration courts of the U.S. just decided this year that the Judge can “pretermit” or abandon a person’s case for asylum if they don’t meet the criteria on paper of a prima facie case. Meaning, that the judge can now deny cases for asylum without an evidentiary hearing, and without a trial. The reason the judge can now do this is solely because someone’s case doesn’t look like it will be able to even fight for asylum at a trial. Consider it similar to a summary judgement in civil court. Where the case as it looks on paper will not even be able to make up the elements of the cause of action.
This is the case that is now supposed to be the guidance for the lower immigration courts to look at when it comes to pretermitting asylum claims: Matter of H-A-A-V-, Respondent, 29 I&N Dec. 233 (BIA 2025). In that case, the BIA stated,
“In a decision issued on May 8, 2025, the Immigration Judge pretermitted the respondent’s applications for asylum, withholding of removal, and protection under the regulations implementing the Convention Against Torture (“CAT”). Sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A) (2018); 8 C.F.R. § 1208.16(c) (2025). The respondent appeals the Immigration Judge’s decision.”
The Board of Immigration appeals ruled that the case was able to be pretermitted without issue.
In that case, the individual petitioning the Court for asylum was a native of Peru in Removal Court in the U.S., who filed an asylum (i589) application for Asylum and Withholding of Removal, based on extortion by criminal gangs in Peru. At the first Master Hearing, the Peruvian national conceded the charges of removability, (something common at Removal hearings), and then the case was re-set for another master hearing. At the second Master Hearing, the attorney for the government, the Department of Homeland Security made an oral motion to “pretermit” the application for relief. The Immigration Judge then determined that there was no prima facie eligibility for asylum/withholding relief, and the Peruvian national was ordered removed to Peru. (Matter of H-A-A-V-, Respondent, 29 I&N Dec. 233 (BIA 2025).
On appeal, the Peruvian argued that the decision to pretermit/abandon or otherwise deny his case without a hearing or trial violated due process law, and his statutory and regulatory rights. The BIA stated since there were no factual issues in dispute, a hearing was not needed.
The BIA found “Immigration Judges are not required to hold merit hearings on applications that are incomplete or where an applicant is ineligible for relief and may pretermit those applications. See, e.g., Matter of C-A-R-R-, 29 I&N Dec. 13, 15 (BIA 2025) (holding that Immigration Judges need not consider the merits of Form I-589 applications that are incomplete); Matter of J-G-P-, 27 I&N Dec. 642, 643, 650 (BIA 2019) (affirming an Immigration Judge’s pretermission of a cancellation of removal application based on a criminal conviction).” Also the BIA stated that the Respondent did not present reasons why a full evidentiary hearing was necessary. Finally, since the case was based off of extortion of criminal gangs, the BIA found that this economic extortion does not rise to the level of persecution nor torture.
“[T]he United States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case arises, has repeatedly held that it “do[es] not recognize economic extortion as a form of persecution under immigration law.” Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015) (alteration in original) (quoting Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012)); accord Gonzalez-Soto v. Lynch, 841 F.3d 682, 684 (5th Cir. 2016); Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014). As the respondent’s past extortion does not rise to the level of persecution, it also does not meet the “higher bar of torture.” Roy v. Ashcroft, 389 F.3d 132, 140 (5th Cir. 2004) (citation omitted).” Matter of H-A-A-V-, Respondent, 29 I&N Dec. 233 (BIA 2025).
The BIA pointed out that extortion was the only suffering put into the I589, and there was no fear of future harm put into the application for asylum. Also, the Respondent did not describe that he was in a particular social group that would fall under a protected basis.
Bottom line, asylum is now in a complicated territory, and having an attorney that understands asylum is essential now more than ever before. This decision significantly changes the practical posture of asylum cases in Immigration Court because applications can no longer rely on developing testimony at a merits hearing/trial to cure weak or incomplete claims. The asylum application or I-589 itself, along with any initial filings, must now clearly establish all required legal elements on paper from the outset. If the protected ground, nexus, or fear of future harm is not explicitly articulated, the case may never be able to reach a trial. Essentially this places enormous pressure on asylum seekers at the earliest stages of their cases, often before they fully understand the legal framework governing asylum.
Follow us for more Blog Posts, and set up a free consultation with our office if you need an attorney to look through your asylum or immigration case. www.legalamericandream.com
See this decision, and chek out more decisions from the BIA: