A new Memo from the Executive Office for Immigration Review (EOIR, the office that oversees our nation’s Immigration Courts) allows Immigration Judges to “pretermit” (deny) asylum cases without a hearing if the applicant has failed to state a claim for protection. What does this mean? And how can asylum seekers in court protect themselves from having their applications pretermitted?

Before we get to that, let’s look at why EOIR is adopting this new policy. According to the Memo, because there are nearly 4 million cases in Immigration Court, judges need to “more efficiently manage their dockets.” To do this, EOIR states that Immigration Judges (IJs) should take “all appropriate action to immediately resolve cases on their dockets that do not have viable legal paths for relief or protection from removal.” Thus, where the facts set forth in an asylum application–even if accepted as true–would not qualify the applicant for asylum, the Memo states that IJs should dismiss the application and (presumably) order the asylum seeker removed from the United States. 

At least in my reading, the legal basis for the EOIR Memo is questionable. The Memo states that “Current regulations require a hearing on an asylum application only ‘to resolve factual issues in dispute.'” The italicized language is from 8 C.F.R. § 1240.11(c)(3). However, when we look at the full quote of that section in context, it does not seem to mean what EOIR says it means:

Applications for asylum and withholding of removal so filed will be decided by the immigration judge pursuant to the requirements and standards established in 8 CFR part 1208 of this chapter after an evidentiary hearing to resolve factual issues in dispute. An evidentiary hearing extending beyond issues related to the basis for a mandatory denial of the application… is not necessary once the immigration judge has determined that such a denial is required.

In other words, the IJ cannot deny an asylum application until “after an evidentiary hearing to resolve factual issues in dispute.” Indeed, the second sentence of the above quote implies that there must be an evidentiary hearing, but that hearing can end once the judge determines that denial is mandatory.

EOIR reads this same language to mean that an evidentiary hearing is only needed if there are factual issues in dispute. This interpretation seems designed to arbitrarily deny cases where the applicant failed to include sufficient information on the asylum application, Form I-589. As I read it, the purpose of the regulation is to ensure that a valid case is not dismissed simply because the applicant included too little information on the form. The more generous reading makes sense, given that asylum applicants are often pro se (without a lawyer), they are unfamiliar with U.S. law, and in many cases, they do not speak English. Also, many asylum seekers have suffered trauma, which also makes it more difficult to explain themselves on the I-589.

While the legal basis for the EOIR Memo is questionable–and will perhaps be challenged in federal court–asylum seekers would be well advised to explain on Form I-589 why they are eligible for asylum. It is not difficult to state a claim for protection. You can just briefly describe what harm you suffered in the past (if any), what harm you fear in the future, and why this harm is/will be inflicted upon you. This information can be included on page 5 of the I-589 (and also pages 6-8), or in a separate document submitted with the I-589 to the Court.

Maybe it would help to list a few examples of legally insufficient claims that could be pretermitted by an IJ, and to explain why these claims are problematic (these statements would normally appear in the boxes on page 5 of the form)–

• l fear that I will be harmed or killed if I return to my county.

The problem here is that the applicant has not explained why she will be harmed if she returns home. To qualify for asylum, the “why” is very important. You have to show that the persecutor wants to harm you “on account of” (because of) your race, religion, nationality, political opinion or particular social group. If someone want to harm you because they want to steal your money, that is probably not a basis for asylum. If someone wants to harm you because they do not like your religion, that can be a basis for asylum.

• I will submit an affidavit explaining why I need asylum.

While this statement may have worked at one time, under the new Memo, it would be a very bad idea to promise an explanation in the future. You need to provide the explanation at the time you file for asylum with the Court. 

• The government harmed me in the past because I was a member of an opposition political party.

The difficulty here is that the person has not indicated that she faces harm in the future. While past harm alone can be a basis for asylum, in most cases, you need to show a well-founded fear of harm in the future, and so you need to state that. 

OK. Here are some examples of short statements that should be legally sufficient–

• I was a member of the CUD, an opposition political party. As a result, Ethiopian government agents detained and beat me, and threatened to kill me. I fear that if I return to Ethiopia, I will be harmed again or killed due to my political opinion.
• I am a member of a minority ethnic group, Hazara, and a minority religion, Shia Islam. The Taliban in Afghanistan threatened me because I am Hazara and Shia, and I fear that if I return to my country, they will harm or kill me for these reasons. 
• I am gay. In my country, homosexuality is illegal, and I fear that if I return, the government will arrest and persecute me due to my sexual orientation, which is a recognized particular social group. I also fear that members of my family and the community will harm or kill me because I am gay. The government is unable and unwilling to protect me from this harm.

You get the idea. In each case, we describe past threats or harm, discuss why the person fears future harm, and explain the “why.” Statements like these should be legally sufficient to survive pretermition under the new EOIR Memo.

What if you’ve already submitted your I-589 and you fear that it is not adequate? As soon as possible, you should file a new I-589 or a supplemental affidavit with the Immigration Court to correct the problem and ensure that you have stated a claim for asylum.

Ultimately, even under this Memo, IJs have the authority to pretermit or not. While we can hope that most IJs will do their duty and allow cases to go forward, it is important to make sure that you state a legally sufficient claim for asylum. That is the best way to protect yourself from EOIR’s latest effort to increase “efficiency.”