EOIR Memo Empowers Immigration Judges to Dismiss Legally Insufficient Asylum Cases Without Hearings

The Executive Office for Immigration Review (EOIR) issued a Policy Memorandum (PM 25-28), signed by Acting Director Sirce E. Owen, granting immigration judges explicit authority to “pretermit”—or summarily dismiss—asylum applications deemed legally insufficient without holding a hearing. Effective immediately, the directive targets the staggering backlog of nearly 4 million pending cases overwhelming EOIR’s immigration courts, signaling a push for greater efficiency in case management.

The memo underscores adjudicators’ responsibility to streamline their dockets, referencing regulations such as 8 C.F.R. § 1003.10(b), which mandates efficient case handling. It clarifies that aliens in removal proceedings bear the burden of proving eligibility for relief or protection, as outlined in 8 U.S.C. § 1229a(c)(4) and 8 C.F.R. § 1240.8(d).

When an asylum application fails to meet the threshold of prima facie eligibility—lacking a viable legal basis, such as no nexus to a protected ground, untimely filing, or a disqualifying criminal conviction—judges are encouraged to dismiss it outright. The memo cites supporting caselaw, including Valencia v. Garland (2023), Zhu v. Gonzales (2007), and Matter of J-G-P- (2019), where pretermission was upheld for similar deficiencies.
Historically, guidance on pretermitting asylum applications has been murky.

The memo notes that the Board of Immigration Appeals (BIA) addressed the issue in Matter of Fefe (20 I&N Dec. 116, 1989), but the regulations it relied on are obsolete, casting doubt on its relevance. A subsequent BIA decision, Matter of E-F-H-L- (2014), was vacated by the Attorney General in 2018, leaving adjudicators without clear precedent. PM 25-28 steps into this void, asserting that current regulations, particularly 8 C.F.R. § 1240.11(c)(3), require hearings only to resolve factual disputes.

If an application’s facts are undisputed but legally deficient—say, the claimed persecution doesn’t tie to race, religion, or another protected ground—no hearing is necessary. The memo also points to 8 C.F.R. § 1240.1, which grants judges broad authority to take “appropriate and necessary” actions to resolve cases.

Addressing potential pushback, the memo acknowledges regulations stating that aliens “shall be examined under oath” on their applications (8 C.F.R. § 1240.11(c)(3)(iii)). However, it argues this applies only when facts are contested. Delving into irrelevant details, it says, is inefficient and misaligns with the regulatory framework’s intent.

Similarly, while the Immigration and Nationality Act (INA § 240(b)(1)) allows judges to examine witnesses, it imposes no obligation to do so in every case, especially when the legal outcome is clear.

The policy doesn’t mandate pretermission; judges retain discretion to decide case by case. The memo frames itself as an interpretive rule, not creating enforceable rights or dictating specific outcomes. It directs adjudicators with questions to supervisors, emphasizing flexibility within the new framework.