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Matter of C-I-G-M- & L-V-S-G-, Respondents

Decided October 31, 2025

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) If the Department of Homeland Security claims that an asylum cooperative agreement

bars a respondent from applying for asylum in the United States, the Immigration Judge

should determine whether the safe third country bar applies prior to and separate from

considering a respondent’s eligibility for asylum.

(2) A respondent subject to the terms of an asylum cooperative agreement has the burden

to establish by a preponderance of the evidence that he or she will more likely than not

be persecuted on account of a protected ground or tortured in the relevant third country

to avoid application of the safe third country bar and for the respondent to be eligible to

seek asylum and other protection claims in the United States.

FOR THE RESPONDENT: Richard J. Hatch, Esquire, Omaha, Nebraska

FOR THE DEPARTMENT OF HOMELAND SECURITY:

Associate Legal Advisor

Danil E. Vishniakov,

BEFORE:

Board Panel:

MALPHRUS, Chief Appellate Immigration Judge;

HUNSUCKER and VOLKERT, Appellate Immigration Judges.

MALPHRUS, Chief Appellate Immigration Judge:

The Department of Homeland Security (“DHS”) has filed an

interlocutory appeal from the Immigration Judge’s August 26, 2025, decision

denying its motion to pretermit the lead respondent’s applications for asylum,

withholding of removal, and protection under the regulations implementing

the Convention Against Torture (“CAT”). 1 See 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);

1

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into

force for United States on Nov. 20, 1994). The respondents are the lead respondent and

her minor child. The minor child seeks asylum as a derivative beneficiary of the lead

respondent. INA § 208(b)(3)(A), 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 1208.3(a)(1)

(2025). She has not filed separate applications for relief or protection and is not entitled to

assert a derivative claim for withholding of removal or CAT protection. See

Matter of A-K-, 24 I&N Dec. 275, 279–-80 (BIA 2007). References to the respondent in

the singular are to the lead respondent, unless otherwise indicated.

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8 C.F.R. § 1208.18(a) (2020). We requested and received supplemental

briefing from both parties. The appeal will be sustained, and the record will

be remanded.

This case involves the safe third country bar to asylum under section

208(a)(2)(A) of the INA, 8 U.S.C. § 1158(b)(2)(A), and the authority of

Immigration Judges under 8 C.F.R. § 1240.11(h) (2025) to apply bilateral or

multilateral agreements between the United States and countries other than

Canada. 2 Although we do not ordinarily entertain interlocutory appeals, we

deem it appropriate to do so here “to correct recurring problems in the

handling of cases by Immigration Judges.” Matter of M-D-, 24 I&N

Dec. 138, 139 (BIA 2007). Problems involving the handling of cases subject

to the regulation have recently become a recurring issue, and our decision in

this matter will provide guidance to Immigration Judges and the parties on

the proper application of the regulation. See 8 C.F.R. § 1003.1(d)(1) (2025)

(“[T]he Board, through precedent decisions, shall provide clear and uniform

guidance to DHS, the immigration judges, and the general public on the

proper interpretation of the [INA] and its implementing regulations.”).

I. FACTUAL AND PROCEDURAL HISTORY

The respondents are natives and citizens of Guatemala. They entered the

United States without inspection on August 23, 2023. The next day, DHS

served them with notices to appear in removal proceedings. The lead

respondent filed an application for asylum, withholding of removal, and CAT

protection on September 28, 2023. In her application, the respondent

claimed that she fears being harmed by her “neighbors and other bad men”

in Guatemala. DHS filed a motion to pretermit the lead respondent’s

application on August 7, 2025, arguing that she is ineligible to apply for

asylum and related relief because she may be removed to Honduras for

consideration of those claims pursuant to an agreement between the United

States and Honduras.

The respondents filed a brief in opposition to DHS’ motion in which they

argued, through counsel, that they would be persecuted in Honduras

“because they are refugees fleeing from threats and violence against their

family in Guatemala.” The respondents did not contest that the lead

respondent is otherwise subject to the terms of the agreement with Honduras.

Nor did they present any evidence that they had ever been to Honduras. The

only evidence the respondents submitted in support of their argument was

2

The safe third country agreement between the United States and Canada is separately

governed by 8 C.F.R. § 1240.11(g).

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the United States Department of State 2023 Country Report on Human

Rights Practices for Honduras.

The Immigration Judge denied DHS’ motion to pretermit. He stated in

his order that the respondent “through counsel presents a fear of travel to

Honduras . . . which is an exception to the [asylum cooperative agreement].”

The present appeal followed.

The issue on appeal is whether the Immigration Judge applied the correct

analysis in determining that the safe third country bar to asylum did not apply

to the respondent. Whether the facts establish that a statutory bar to asylum

applies is a legal question we review de novo. 8 C.F.R. § 1003.1(d)(3)(i)

(2025); see also Matter of A-G-G-, 25 I&N Dec. 486, 488 (BIA 2011)

(involving the firm resettlement bar).

II. DISCUSSION

A. Legal Background

Under the safe third country bar to asylum, an alien is ineligible to apply

for asylum in the United States

if the Attorney General determines that the alien may be removed, pursuant to a

bilateral or multilateral agreement, to a country (other than the country of the alien’s

nationality or, in the case of an alien having no nationality, the country of the alien’s

last habitual residence) in which the alien’s life or freedom would not be threatened

on account of race, religion, nationality, membership in a particular social group, or

political opinion, and where the alien would have access to a full and fair procedure

for determining a claim to asylum or equivalent temporary protection, unless the

Attorney General finds that it is in the public interest for the alien to receive asylum

in the United States.

INA § 208(a)(2)(A), 8 U.S.C. § 1158(a)(2)(A). This bar is implemented in

relevant part by 8 C.F.R. § 1240.11(h), which governs the authority of

Immigration Judges to apply asylum cooperative agreements (“ACAs”)

between the United States and countries other than Canada. See

Implementing Bilateral and Multilateral Asylum Cooperative Agreements

Under the Immigration and Nationality Act, 84 Fed Reg. 63994, 64010

(Nov. 19, 2019) (interim rule) (“ACA Rule”). 3 The regulation applies “only

prospectively to aliens who arrive at a U.S. port of entry, or enter the United

States between ports of entry, on or after” November 19, 2019, and

The Secretary of Homeland Security recently ratified the ACA Rule. See Ratification

of Department Action, 90 Fed. Reg. 42309 (Sept. 2, 2025).

3

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“provide[s] a general mechanism for implementation of all existing and

future ACAs not previously implemented.” Id. at 63995–96.

Under the regulation, an Immigration Judge is required to “determine

whether under the relevant [ACA] agreement the alien should be removed to

the third country, or whether the alien should be permitted to pursue asylum

or other protection claims in the United States.” 8 C.F.R. § 1240.11(h)(1).

An alien subject to an ACA is ineligible to apply for asylum, withholding of

removal, or CAT protection in the United States

unless the immigration judge determines, by a preponderance of the evidence, that:

(i) The relevant agreement does not apply to the alien or does not preclude the

alien from applying for asylum in the United States;

(ii) The alien qualifies for an exception to the relevant agreement as set forth in

paragraph (h)(3) of this section and the Federal Register document specifying the

exceptions particular to the relevant agreement; or

(iii) The alien has demonstrated that it is more likely than not that he or she

would be persecuted on account of a protected ground or tortured in the third

country.

8 C.F.R. § 1240.11(h)(2). If an alien is “subject to the terms of” one or more

ACAs and has not demonstrated that the safe third country bar does not

apply, the Immigration Judge shall order the alien “removed to the relevant

third country in which the alien will be able to pursue his or her claims for

asylum or protection against persecution or torture under the laws of that

country.” 8 C.F.R. § 1240.11(h)(4). “If more than one agreement applies to

the alien and the alien is ordered removed, the immigration judge shall enter

alternate orders of removal to each relevant country.”

8 C.F.R.

§ 1240.11(h)(1).

In applying the safe third country bar, the authority delegated to

Immigration Judges by the regulation is limited to determining whether any

of the conditions discussed in 8 C.F.R. § 1240.11(h)(2) apply so as to render

the relevant ACA inapplicable to the particular respondent. Immigration

Judges do not have authority to make the determination required under

section 208(a)(2)(A) of the INA as to whether “the alien would have access

to a full and fair procedure” in the third country because the Attorney General

has expressly reserved that statutory authority. See 84 Fed. Reg. 63997,

64002 (explaining that the Attorney General and the Secretary of Homeland

Security will make the threshold full and fair third country determination

prior to the implementation of an ACA, and that this determination is

“separate and apart from the regulatory provisions” in the ACA rule).

Similarly, Immigration Judges lack authority to determine whether it is in the

public interest for an alien subject to an ACA to pursue asylum in the United

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States because section 208(a)(2)(A) of the INA, 8 U.S.C. § 1158(a)(2)(A),

“reserves to the Secretary [of Homeland Security] or [her] delegates the

determination whether it is in the public interest for the alien to receive

asylum in the United States.” 8 C.F.R. § 1240.11(h)(3). 4

The United States entered into an ACA with Honduras on March 10,

2025. See Agreement Between the Government of the United States of

America and the Government of the Republic of Honduras for Cooperation

in the Examination of Protection Requests, 90 Fed. Reg. 30076 (July 8,

2025). The ACA does not apply to unaccompanied minors, nationals or

habitual residents of Honduras, or people involved in certain crimes or

subject to Interpol notifications. Id. at 30078–80. As originally agreed, the

ACA would only apply to aliens who arrived in the United States on or after

the date the ACA entered into force. Id. at 30078–79. The Governments of

the United States and Honduras exchanged diplomatic notes on June 25,

2025, which amended the ACA by removing that temporal limitation. Id. at

30082–86.

B. Procedures in Removal Proceedings

If a respondent seeking asylum is subject to the terms of an ACA, DHS

must provide oral or written notice that it intends to remove the respondent

to the relevant third country for consideration of his or her asylum claim. See

84 Fed Reg. at 64000 (“[T]his interim rule provides that an alien who will

potentially be subject to an ACA will be advised that he or she may be

removed to a third country pursuant to a bilateral or multilateral

agreement.”). Once DHS has provided notice, the respondent must have a

reasonable opportunity to satisfy his or her burden to show by a

preponderance of the evidence that the safe third country bar does not apply

because he or she will more likely than not be persecuted or tortured in the

relevant third country. See 8 C.F.R. §§ 1240.8(d), 1240.11(h)(2)(iii);

see also Matter of H-A-A-V-, 29 I&N Dec. 233, 234 (BIA 2025) (explaining

that “statutory and regulatory provisions [governing removal proceedings]

ensure that the respondent has the opportunity to present evidence in support

Immigration Judges may not require DHS to demonstrate that an ACA country of

removal is willing to accept a respondent who is subject to the terms of an ACA. See

8 C.F.R. § 241.15(d) (2025) (“No commitment of acceptance by the receiving country is

required prior to designation of the receiving country, before travel arrangements are made,

or before the alien is transported to the receiving country.”); see also Matter of A-S-M-,

28 I&N Dec. 282, 285 (BIA 2021) (recognizing that Immigration Judges do not have

jurisdiction to review DHS’ discretionary determination as to the country of removal).

4

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of any applications for relief and to respond to any evidence presented by

DHS”).

Where a respondent claims the ACA bar should not apply, the

Immigration Judge must determine the bar’s applicability and, to the extent

it may be necessary to resolve disputed facts, hold an evidentiary hearing to

address them. Because a respondent will generally have no substantial

connection to the relevant third country, evaluating a respondent’s claim of

future persecution or torture in the third country “is more straightforward”

than undertaking “a complex assessment” of an asylum applicant’s fear of

persecution in his or her home country. 84 Fed Reg. at 64004. As the

commentary to the ACA Rule notes, “[b]ecause the ACA country of removal

did not prompt the alien’s claim, the process for determining simply whether

to send the alien to a third country for that consideration is reasonably more

minimalistic than the requisite procedures for deciding asylum and

withholding of removal claims on the merits.” Id.

Thus, if a respondent subject to an ACA claims a fear of persecution or

torture in a relevant third country, but has no substantial connection to that

country, an Immigration Judge should typically be able to resolve the

applicability of the safe third country bar without conducting a full

evidentiary hearing. Instead, it will generally be appropriate for the

Immigration Judge to conduct an abbreviated hearing, typically in a master

calendar setting, that includes consideration of any documentary evidence

submitted by the respondent. See Matter of H-A-A-V-, 29 I&N Dec. at

235–36, 238 (holding that it is appropriate for an Immigration Judge to

pretermit a respondent’s applications for asylum, withholding of removal,

and CAT protection without a full evidentiary hearing in certain

circumstances).

The ACA Rule was promulgated to facilitate “a threshold screening to

determine whether an alien is barred from applying for asylum in the United

States pursuant to an ACA.” 84 Fed Reg. at 63998. Thus, if DHS claims

that an ACA bars a respondent from applying for asylum in the United States,

the Immigration Judge should determine whether the safe third country bar

applies prior to and separate from considering a respondent’s eligibility for

asylum. If the respondent meets his or her burden to demonstrate that the bar

does not apply, the Immigration Judge should proceed to consider the merits

of the respondent’s asylum and protection claims. However, if the

respondent does not meet his or her burden, the safe third country bar applies,

and there is no basis for the Immigration Judge to further consider asylum.

See 8 C.F.R. § 1240.11(h)(4); 84 Fed Reg. at 63996 (“[A]pplication of the

ACA bar does not involve an evaluation of whether an alien would ultimately

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receive asylum relief if able to apply, or even whether the alien has made a

preliminary showing of a significant possibility that the alien would be

eligible for asylum.”). The Immigration Judge should order the respondent

removed to the relevant third country. 8 C.F.R. § 1240.11(h)(4).

C. Application to the Respondent

DHS’ motion to pretermit the respondent’s asylum application provided

her with proper notice of its intent to remove her to Honduras for

consideration of her asylum and protection claims under the relevant ACA.

The respondents’ opposition to the motion claimed that they would be

persecuted in Honduras “because they are refugees fleeing from threats and

violence against their family in Guatemala,” and was supported only by the

country report for Honduras. The Immigration Judge erred in denying,

without meaningful factual or legal basis, DHS’ motion based on the

respondent’s “fear of travel to Honduras.”

Under 8 C.F.R. § 1240.11(h)(2)(iii), a respondent subject to the terms of

an ACA has the burden to establish by a preponderance of the evidence that

he or she will more likely than not be persecuted on account of a protected

ground or tortured in the relevant third country to avoid application of the

safe third country bar and for the respondent to be eligible to seek asylum

and other protection claims in the United States. The respondents’ counsel

made conclusory statements to the Immigration Judge that the respondents

in this case will be persecuted in Honduras. However, the respondents have

presented no evidence that they have ever been to Honduras or that anyone

in Honduras would target them for harm based on their Guatemalan

nationality or their alleged status as individuals “fleeing from threats and

violence against their family in Guatemala.” The generalized evidence of

country conditions in Honduras submitted with their response to DHS’

motion is clearly insufficient to satisfy the burden of proof. See generally

Setiadi v. Gonzales, 437 F.3d 710, 714 (8th Cir. 2006) (“It is insufficient to

allege a generalized fear of persecution because of isolated acts of violence

to those other than the [respondent].”); Nadeem v. Holder, 599 F.3d 869,

873–74 (8th Cir. 2010) (“Evidence of general conditions is insufficient to

establish that one is more likely than not to suffer torture.”).

D. Other Issues

The respondent argues that she cannot be subject to the ACA with

Honduras because it was implemented after she arrived in the United States

and filed her asylum application. The respondent arrived in the United States

on August 23, 2023, and applied for asylum approximately a month later.

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The ACA with Honduras was entered into on March 10, 2025, and entered

into force on June 25, 2025. 90 Fed. Reg. at 30080–81, 30086.

Although the ACA with Honduras was entered into after the respondent

applied for asylum, the ACA Rule governing the “implementation of all

existing and future ACAs” took effect on November 19, 2019, several years

before the respondents entered the United States.

84 Fed Reg.

at 63995–63996; see also id. at 63995 (explaining that the ACA Rule will

apply to “any future” agreements “once the agreements enter into force”).

Moreover, the ACA with Honduras, as amended, specifically states that it

applies to aliens who arrived in the United States at any time. 90 Fed. Reg.

at 30079–80, 30082–86; see also Avero Belgium Ins. v. Am. Airlines, Inc.,

423 F.3d 73, 81 (2d Cir. 2005) (explaining that a treaty may govern conduct

that occurred before the treaty entered into force when such an “intention

appears from the treaty or is otherwise established” (citation omitted)).

Thus, we conclude that the respondent is subject to the ACA with

Honduras through the application of 8 C.F.R. § 1240.11(h). Although the

ACA with Honduras was not implemented until after the respondent filed her

asylum application in the United States, “application of the new provision is

not retroactive” because it only “affects the propriety of prospective relief.”

Landgraf v. USI Film Products, 511 U.S. 244, 273 (1994); see also

Wanyama v. Holder, 698 F.3d 1032, 1037 (8th Cir. 2012) (“[A]liens do not

have a constitutionally protected liberty or property interest in receiving

asylum, because it is ‘statutorily created relief that is subject to the unfettered

discretion of a governmental authority.’” (quoting Obleshchenko v. Ashcroft,

392 F.3d 970, 971 (8th Cir. 2004))). Nothing in section 208(a)(2)(A) of the

INA, 8 U.S.C. § 1158(a)(2)(A), restricts the application of this bar to

agreements formed after an alien’s arrival in the United States.

The respondent also argues in her supplemental brief that Honduras does

not provide a full and fair procedure for adjudicating her asylum claim and it

would be in the public interest to allow her to pursue her asylum claim in the

United States. As explained in part II.A., the Attorney General and the

Secretary of Homeland Security have expressly reserved the authority to

determine whether aliens have access to full and fair procedures as required

under section 208(a)(2)(A) of the INA, 8 U.S.C. § 1158(a)(2)(A). See 84 Fed

Reg. at 63997, 64002. Additionally, the authority to make the “public

interest” determination is reserved to the Secretary and her delegates.

8 C.F.R. § 1240.11(h)(3). Neither the Immigration Judge nor the Board has

the authority to make either of these determinations. See Matter of H-M-V-,

22 I&N Dec. 256, 258 (BIA 1998) (“[T]he jurisdiction of this Board, and of

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the Immigration Judge, is limited by statute and regulation to that which has

been delegated by the Attorney General.”).

III. CONCLUSION

The Immigration Judge erred in determining that the ACA with Honduras

does not apply to the respondent based solely on counsel’s representations

that the respondent fears being harmed there and generalized evidence of

country conditions in Honduras. Accordingly, we will sustain DHS’ appeal

and reverse the Immigration Judge’s denial of its motion to pretermit. We

will remand the record to the Immigration Judge for further consideration of

the applicability of the ACA bar consistent with the guidance provided in this

decision. On remand, the Immigration Judge should take any other action

necessary for the resolution of the respondents’ removal proceedings,

including making a determination on their removability. We express no

opinion on the ultimate outcome of these proceedings. See Matter of L-O-G-,

21 I&N Dec. 413, 422 (BIA 1996).

ORDER:

The appeal is sustained, and the Immigration Judge’s

August 26, 2025, decision denying DHS’ motion to pretermit is vacated.

FURTHER ORDER: The record is remanded for further proceedings

consistent with the foregoing opinion.

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