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| Georgianna Pisano Goetz |
Immigration judges across the country are increasingly denying asylum applications without taking testimony or holding full evidentiary hearings, relying on a Sept. 11 Board of Immigration Appeals decision that effectively imports a civil procedure-style summary judgment mechanism into immigration court.
The ruling, Matter of H-A-A-V-, permits judges to pretermit — dismiss — an application for asylum, withholding of removal or United Nations Convention Against Torture protection whenever there is no dispute over material facts and the court finds the facts, "viewed in the light most favorable to the respondent," do not establish prima facie eligibility for relief.
The BIA analogized the new pretermission authority to motions in federal civil litigation — specifically motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure and for summary judgment under Rule 56.
But the comparison to civil procedure mechanisms is selective at best — and dangerously incomplete without civil procedure protections.
A Civil Procedure Tool Without Civil Procedure Safeguards
In federal civil proceedings, a litigant facing a Rule 12(b)(6) motion typically receives multiple chances to amend their pleadings. Summary judgment can be granted only after notice, briefing and the identification of undisputed material facts.
By contrast, immigration judges may now grant pretermission orally and on the spot. This includes dismissing an application at the master calendar hearing — an early appearance in a case and a stage historically reserved for scheduling, not merits litigation.
U.S. Department of Homeland Security attorneys frequently make these motions without briefing, and without the noncitizen having received advanced notice.
The BIA's approach also departs sharply from its own long-standing precedent. In 2012's Matter of Fefe, the BIA deemed "full examination of an applicant to be an essential aspect of the asylum adjudication process" because oral testimony often determines whether a claim succeeds.
The H-A-A-V- decision declares Fefe "no longer binding," clearing a path for judges to rule without ever hearing from the applicant. The result is a summary judgment analog without the procedural protections that make summary judgment fair.
Pretermission Used Without Judicial Economy Benefits
Despite being framed as an efficiency measure, pretermission has increasingly been granted even at individual hearings, after the court and parties have already prepared for testimony. This practice provides no meaningful judicial economy benefit, because judges cannot substitute another case at the last minute.
What it does serve, however, are case completion quotas, originally set forth in 2018, and reinstated in a February Executive Office for Immigration Review performance policy memorandum that directs immigration judges to complete asylum adjudications within 180 days "to the maximum extent practicable."
Applying for Asylum
A noncitizen seeking asylum must show they meet the legal definition of "refugee," which includes three broad categories that applicants for asylum must establish.[1]
First, the applicant must show they suffered or will suffer severe harm, rising to the level of persecution.
Second, the applicant must show that this persecution was on account of their race, religion, nationality, membership in a particular social group or political opinion.
Third, the applicant must show the persecution was committed by a government actor, or an actor the government is unable or unwilling to control.
Each of these three broad elements has numerous subelements, which the applicant must present to the court for consideration.
The immigration judge must then make a case-by-case analysis of the elements, taking into account the country and culture in which the alleged harm took place.
The applicant must establish each element with precision, providing evidence and context for the country conditions. Preparing an applicant to testify and assembling the documentation needed to establish these legal elements is a time-consuming, careful process.
Evidence can be difficult to collect, particularly if the country in which the applicant suffered persecution has little to no formal recordkeeping, or the specific events are poorly documented — or purposefully undocumented.
While an applicant's credible testimony alone can be sufficient to sustain the burden of proof, trauma, cultural differences, age, gender, language and competence may affect whether a foreign national's testimony appears credible to a judge sitting in the U.S.[2] And even when testimony is credible, an immigration judge may require corroborating evidence that is difficult to obtain.
Heightened Pressure at Initial Hearings
The legal rules guiding these adjudications evolve naturally with changing cultural and human rights norms. The requirements for establishing each element and subelement have changed rapidly between recent presidential administrations.
Given the shift represented by H-A-A-V-, attorneys must now treat master calendar hearings like condensed merits hearings and prepare accordingly.
Practitioners now must be prepared to establish a prima facie claim to relief in the preliminary stages of removal proceedings.[3]
While the BIA's 1996 decision in Matter of L-O-G- clarified that, at the prima facie stage, "the Board does not require a conclusive showing that, assuming the facts alleged to be true, eligibility for relief has been established," the H-A-A-V- decision calls for substantive legal argument on the elements of asylum in the early stages of removal proceedings.[4]
Practitioners must be prepared to articulate a particular social group immediately, even in complex cases. Applicants were already required to delineate any proposed particular social group on the record before an immigration judge.[5]
In H-A-A-V-, the BIA affirmed the immigration judge's decision in part because it found the asylum-seeker had not articulated a particular social group "when given the opportunity to do so" — at the aforementioned master calendar hearing.[6] Thus, H-A-A-V- has expanded that requirement to the earliest possible moment in the application process.
Since the BIA's W-Y-C- & H-O-B- decision in 2018, practitioners have been on notice to "clearly indicate on the record before the immigration judge the exact delineation of any proposed particular social group."[7] In that decision, the asylum-seeker was barred from articulating a new particular social group for the first time on appeal.
Prior to the appeal, asylum-seekers were permitted to articulate their particular social group to the immigration judge at an unspecified time and proceed to their individual hearing, where the immigration judge completed an analysis of the proposed particular social group.
In H-A-A-V-, the board interpreted W-Y-C- & H-O-B- to require that an applicant articulate the proposed particular social group whenever given the opportunity, which may be interpreted to be as early as the initial master calendar hearing. Therefore, asylum-seekers must be prepared to articulate their proposed particular social group and argue its cognizability immediately.
Based on personal observation, it appears that immigration judges sitting in the U.S. Court of Appeals for the Fifth Circuit are applying H-A-A-V-'s logic to pretermit claims of harm on account of gang-based particular social groups.
Similarly, practitioners must be prepared to distinguish adverse circuit precedent in the preliminary stages of removal proceedings. Practitioners must be prepared to differentiate on issues such as gang-based extortion, which the H-A-A-V- court treated as facially insufficient based on Fifth Circuit precedent, without conducting a fact-specific analysis.
The immigration judge, sitting in the Fifth Circuit, pretermitted the asylum-seeker's claim based in part on a finding that his alleged harm — economic extortion by criminal gangs — does not rise to the level of persecution within the Circuit.[8]
The judge's approach, later affirmed by the board, fails to conduct a case-by-case analysis of the harm alleged. Thus, practitioners must be prepared to argue with specificity at preliminary hearings why their client's facts sufficiently differentiate them from any negative case law.
Based on personal observation, DHS is moving for pretermission orally at master calendar and individual hearings, without notice to the respondent's counsel.
The immigration judge may grant such motions without providing the respondent's counsel an opportunity to brief the issue — although the applicant's counsel should take care to request that the court require briefing from both parties to preserve the issue on the record.
The immigration judge decides whether any issue of material fact exists. If the court concludes the written record — often just the brief Form I-589 asylum application — does not establish eligibility, the asylum-seeker may be denied the opportunity to testify.[9]
Rising Tension Between Civil, Criminal and Immigration Frameworks
The BIA's reliance on civil procedure stands in tension with other recent precedents steering immigration courts toward treatment more analogous to criminal proceedings — particularly regarding detention.
In the last year, the BIA has made it harder for immigration judges to consider bond for individuals who entered without inspection, returning lawful permanent residents categorized as "arriving aliens," respondents whose criminal court bonds have already been adjudicated and even individuals granted withholding of removal while DHS appeals.[10] DHS has simultaneously increased interlocutory appeals of bond grants.
As a practical matter, many asylum applicants affected by H-A-A-V- are detained — unlike civil litigants, who almost never face this loss of liberty.
Criminal defendants, in contrast, may be detained but enjoy constitutional protections that bar courts from directing a guilty verdict or granting summary judgment against them.
Immigration respondents facing potential exile may now face speedy merits dismissals, without the procedural protections provided in either civil or criminal court.
Due Process Erosion
H-A-A-V- also allows judges to summarily deny asylum applications without articulating which elements of the refugee definition were allegedly unmet. Oral and even written decisions often lack analysis of nexus, particular social group cognizability, past persecution or fear of future persecution — making appellate review difficult and limiting transparency.
Respondents — including those without counsel — may now encounter merits arguments without notice, at calendar hearings designed for case management rather than adjudication.
Because pretermission can occur at any stage — including moments before a scheduled merits hearing begins — practitioners can no longer rely on case posture when deciding whether to prepare. Every appearance must now be treated as an opportunity — or risk — for full adjudication.
A Procedural Turning Point
H-A-A-V- marks a significant procedural shift in asylum adjudication. The decision grafts a streamlined civil procedure mechanism onto a system where applicants frequently face detention, limited access to counsel, and life-or-death stakes.
By adopting a corollary of summary judgment without its safeguards, the BIA has altered the balance between efficiency and fairness — and placed unprecedented burdens on asylum-seekers and their attorneys at the earliest stages of removal proceedings.
Georgianna Pisano Goetz is a senior immigration attorney at the Galveston-Houston Immigrant Representation Project and an adjunct professor at the University of Houston Law Center.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] INA sec. 101(a)(42); 8 USC 1101(a)(42).
[2] REAL ID Act of 2005 sec. 101(a)(1)(B)(ii).
[3] Matter of H-A-A-V- 29 I&N Dec. 233 at(BIA 2025)at 237 (citing Matter of L-O-G-).
[4] Matter of L-O-G-, 21 I&N Dec. 413, 413 (BIA 1996).
[5] Matter of W-Y-C- & H-O-B-.
[6] H-A-A-V- at 236 (citing Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 191 (BIA 2018)).
[7] Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 189 (BIA 2018).
[8] H-A-A-V- at 236.
[9] H-A-A-V- at 235, n.3 (comparing pretermission to civil summary judgment where no dispute as to material facts exists); at 236 (affirming the immigration judge's pretermission where the respondent did "not claim on appeal that any material facts remain in dispute.").
[10] But see, https://www.lehighvalleyimmigrationlawyers.com/blog/nationwide-class-certified-federal-court-strikes-down-yajure-hurtado-and-restores-bond-eligibility-for-thousands-of-immigrants.