Pretermission in Immigration Court
What it means, why judges use it, and how to fight back if it happens in your case.
Date of Information: 12/11/2025
Check back soon; we update these materials frequently.
In immigration court, “pretermission” is a procedural tool an Immigration Judge (IJ) can use to throw out a specific application for relief — most commonly an asylum application — without holding a full hearing. For the person seeking protection, it can feel like the floor just gave way. Cases that have been waiting in the system for years can suddenly be dismissed in minutes.
But here’s the critical point: Pretermission is not the same thing as a final removal order, and it does not automatically terminate the entire case. It dismisses only the specific application that has supposedly failed as a matter of law. Many immigration judges, however, are increasingly misusing pretermission as a shortcut to clearing their dockets.
This guide explains what pretermission is, why it is being used more aggressively today, and what legal protections you still have — including the authorities you can rely on to challenge an improper pretermission order.
What Is Pretermission?
Pretermission is a procedural ruling in which an Immigration Judge (IJ) dismisses or denies a specific application for relief — such as asylum, withholding of removal, CAT protection, or cancellation — as a matter of law without holding an evidentiary hearing.
Pretermission does not terminate removal proceedings. It affects only the application identified by the IJ. This distinction is essential.
Pretermission Does Not End the Case
Although some judges treat pretermission as though it resolves the entire proceeding, that is not what the law provides.
The Case Continues Until All Forms of Relief Are Adjudicated
A removal order becomes final only when all applications for relief have been adjudicated. A ruling on a single application — including pretermission — does not conclude the case. See Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007).
The Regulations Require the IJ to Address All Relief Before Issuing a Removal Order
Under 8 C.F.R. § 1240.12(c)–(d), an IJ must:
Advise the respondent of all available forms of relief,
Permit the respondent to apply for any form of relief for which they are eligible,
Adjudicate each application for relief separately, and
Only then issue a final order of removal.
A pretermission ruling on one application does not satisfy these requirements and cannot, by itself, terminate proceedings.
Rulings on One Application Do Not End the Case
An IJ may deem supporting documents waived, but such a ruling does not end the underlying case or resolve all applications for relief. The proceedings remain active unless and until the IJ adjudicates all relief and issues a final order. See Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010). Taken together, these authorities establish the governing rule: Pretermission is application-specific, not case-ending. The case remains open until every form of relief has been adjudicated.
Why Are Immigration Judges Using Pretermission More Often?
The immigration court system is under extraordinary structural pressure. Judges today are managing crushing backlogs — now exceeding four million pending cases — while simultaneously confronting a tidal wave of new filings generated by President Donald Trump’s mass-deportation strategy implemented immediately upon taking office for his second term in January 2025.
During Trump’s first term, EOIR leadership imposed strict case-completion quotas and aggressive performance metrics that pushed judges to resolve cases at high speed. The Biden administration removed the formal quotas, but the backlog continued to grow at historic levels, leaving judges with heavy dockets and deep administrative strain.
When Donald Trump returned to office in 2025, his administration reinstated a far more aggressive enforcement posture. Large-scale domestic enforcement operations, expanded ICE apprehensions, and accelerated issuance of Notices to Appear have flooded the immigration courts with new cases at volumes not seen in decades. Judges are now under simultaneous pressure from:
An unprecedented influx of new filings arising from the 2025 mass-deportation agenda, and
Internal EOIR expectations to move cases faster than ever, often without additional resources.
Against this backdrop, pretermission has increasingly become a procedural tool some judges use to manage their caseloads. Recent EOIR memoranda have encouraged Immigration Judges to pretermit legally insufficient asylum applications at the master calendar stage, and in 2025, the Board of Immigration Appeals reinforced this authority in Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025). That decision confirmed that a judge may pretermit an asylum claim without a full evidentiary hearing if, taking the applicant’s facts as true, the claim fails as a matter of law.
Nothing about these pressures changes the underlying legal reality: Asylum applicants retain the right to due process, to present testimony, and to receive a full merits hearing unless the law clearly forecloses their eligibility. But in today’s climate — especially under the policies of the second Trump administration — pretermission is being used more frequently as an administrative shortcut for overburdened judges.
Important note:
The institutional pressures on Immigration Judges — including the systemic incentives that discourage granting relief and reward rapid case closure — raise deep constitutional and structural questions about judicial independence and the Fifth Amendment. Those issues will be analyzed fully in a separate research guide and article series.
Your Right to Testify and Present Evidence
Despite these pressures, longstanding legal principles — both regulatory and constitutional — require that asylum applicants be permitted to testify and present evidence.
Binding BIA Authority
Matter of Fefe, 20 I&N Dec. 116 (BIA 1989) — Asylum applicants generally cannot meet their burden of proof without oral testimony. Judges should not decide asylum applications without hearing from the applicant, unless the applicant declines testimony.
Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) — In the ordinary course, asylum and withholding applicants are entitled to a full evidentiary hearing, including the opportunity to testify and present evidence.
Federal Due Process Protections
Ren v. Holder, 648 F.3d 1079 (2d Cir. 2011) — Asylum applicants must be given a meaningful opportunity to present evidence and develop the record.
Li Hua Lin v. DOJ, 453 F.3d 99 (2d Cir. 2006) — A hearing that prevents an applicant from presenting their case violates due process.
Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (en banc) — Denying an applicant the chance to testify about the core of their claim is a due process violation.
When an IJ pretermits an asylum case without allowing testimony, that is an immediate sign that the ruling may be legally unsound.
A Common Error: Judges Conflating Best Practices With Legal Requirements
One of the recurring problems Charles International Law has observed — and one of the ways Immigration Judges are improperly rushing into pretermission — is by conflating best practices in asylum preparation with actual legal requirements under the Immigration and Nationality Act and its implementing regulations.
A frequent example involves Immigration Judges claiming that a Form I-589 is “incomplete” unless a personal statement or declaration is attached. That claim is false.
The Regulations Do Not Require a Personal Statement
The regulations governing asylum filings require only:
Completion of the Form I-589,
Signature under penalty of perjury, and
Compliance with the form instructions.
See 8 C.F.R. § 1208.3(a)–(b).
What the I-589 Instructions Actually Require
The current I-589 instructions require the applicant to:
Answer all questions truthfully and completely,
Provide narrative responses in the spaces provided on the form itself,
Attach additional sheets only if more space is needed,
Sign under penalty of perjury, and
Submit the required passport-style photographs (when applicable).
The instructions explicitly allow applicants to attach a personal statement or additional pages if they choose to, but they do not mandate a separate declaration. They do not state — or even imply — that the absence of a standalone personal statement renders the application incomplete.
The BIA Has Explicitly Rejected the “Missing Declaration = Incomplete I-589” Theory.
The Board of Immigration Appeals removed any doubt on this point:
Matter of C-A-R-R-, 29 I&N Dec. 13 (BIA 2025) — A personal declaration is not a “constituent part” of the I-589.
The absence of a declaration does not make the application incomplete.
The absence of a declaration cannot justify pretermission or a finding of abandonment.
Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010) — Supporting documents may be deemed waived if submitted late, but the application itself cannot be deemed abandoned without proper notice, and not merely because a supplementary document was not attached.
Best Practices ≠ Legal Requirements
As a matter of effective advocacy, Charles International Law prepares a detailed unsworn declaration for every asylum client, because it strengthens the record and improves case outcomes. But that is good practice — not a legal obligation.
Some IJs either misunderstand or intentionally misstate this distinction. In several cases, we have seen judges assert that an I-589 without a personal statement is “incomplete” and use that invented defect to justify pretermission. This is legally incorrect and contrary to binding BIA precedent.
Bottom Line
If an IJ pretermits an asylum application solely because the applicant did not attach a personal declaration, that is legal error and is challengeable through reconsideration or appeal.
If One of Your Applications Is Pretermitted, Is Your Case Over?
Not necessarily. And this is the single most important point in this entire guide: Pretermission applies only to the specific application the judge identifies. It does not end the case, and it does not prevent you from filing a new application so long as the proceedings remain open.
Immigration Judges sometimes suggest — implicitly or explicitly — that once they pretermit an application, there is “nothing left for the respondent to do.” That is not legally accurate. A pretermission order disposes of only that one application. If the IJ has not entered a final removal order, and the proceedings remain open, the respondent is still entitled to file:
a new application for relief, or
a corrected or supplemented version of the application that was pretermitted.
Why? Because the case is not over until all relief applications have been adjudicated. The law is explicit on this point.
The case is not final until all forms of relief are adjudicated
A removal order becomes “final” only when every relief claim has been resolved. Pretermitting one application does not create a final order and does not close the case. See Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007).
The regulations require the IJ to address all potential relief
Under 8 C.F.R. § 1240.12(c)–(d), before the IJ can issue a final removal order, they must:
Advise the respondent of all forms of relief,
Allow the respondent to apply for each form of relief for which they are eligible, and
Adjudicate each application filed.
Only after those steps are completed may the IJ enter a final removal order.
What This Means for Respondents
If an IJ pretermits one of your applications but does not issue a removal order and leaves the case on the docket, you may file another application. You may file a corrected application. You may file a new form of relief altogether. Nothing about the pretermission ruling prevents this. In fact, denying a respondent the opportunity to file additional relief while the case remains open presents a procedural defect and may itself be reversible error. When the IJ pretermits an application but keeps the case open, the door is still open. And the respondent should walk through it.
What You Should Do if One Application Is Pretermitted
If an IJ pretermits one application but does not issue a removal order — meaning the case remains open:
1. Request permission to file a new or corrected application immediately.
Nothing prevents you from doing so. The case is still active.
2. Clarify on the record that other forms of relief remain available.
This prevents the IJ from improperly treating the proceedings as concluded.
3. If the IJ refuses to allow additional relief or prematurely tries to close the case, that is legal error.
Raise it immediately and prepare to challenge it. The failure to allow additional filings while proceedings remain open is reversible.
What Should You Do If the IJ Pretermits an Application and Then Issues a Removal Order?
If the IJ pretermits an application and immediately issues a removal order without allowing additional relief:
The order is likely defective,
It may violate Interiano-Rosa and Burger, and
It may violate the due-process principles in Ren, Li Hua Lin, and Oshodi.
You should strongly consider:
A Motion to Reconsider, or
Final Thoughts
Pretermission has become a common — and too often misused — docket-management tool under the crushing pressures of the second Trump administration. But it remains legally circumscribed. When used improperly, it is reversible.
If your application has been pretermitted, the case is not over. You still have rights. You still have options. And with proper representation, you can often correct the court’s error and keep your case alive.
Need Help with Your Removal Defense?
If your application has been pretermitted or you’re concerned it may be, time matters. Schedule a consultation to review your case, identify legal errors, and determine the fastest path to keeping your case alive. And if you’re at the beginning of your case, it’s wise to hire an attorney early—correct, complete filings from the start are the best protection against improper pretermission.
Frequently Asked Questions (FAQ) About Pretermission in Immigration Court
1. What does “pretermission” mean in immigration court?
Pretermission is the judge’s decision to dismiss a specific application for relief — such as asylum, withholding of removal, or cancellation of removal — without holding a full hearing. It applies only to that application, not to the case as a whole.
2. If the judge pretermits my asylum application, is my entire case over?
No. Pretermission affects only the application identified by the judge. Your case remains active until all applications for relief have been adjudicated and the IJ issues a final removal order.
This is confirmed by Matter of Interiano-Rosa, and Burger v. Gonzales.
3. Can I file a new or corrected application if the judge has pretermitted one of my applications?
Yes. If the IJ has not yet issued a final removal order, you may file a new or corrected application. Pretermission does not prevent additional filings, and denying you that opportunity is legal error.
4. Is a personal declaration required for a complete I-589 asylum application?
No.
Under 8 C.F.R. § 1208.3(a)–(b), an I-589 is complete when it is fully filled out, signed, and submitted in accordance with the instructions. The instructions allow — but do not require — a separate personal statement.
The BIA confirmed this in Matter of C-A-R-R- (2025) and Matter of Interiano-Rosa.
5. Why are Immigration Judges using pretermission more frequently now?
The second Trump administration’s mass-deportation policies (initiated in 2025) have flooded immigration courts with new cases. Combined with severe backlogs and EOIR pressure to move cases rapidly, some judges now use pretermission as a docket-clearing mechanism.
This trend accelerated after Matter of H-A-A-V- (2025), which permitted pretermission of legally insufficient claims at the master calendar stage.
6. Does pretermission violate my right to testify?
It can.
Asylum applicants ordinarily must testify to meet their burden of proof.
Matter of Fefe and Matter of E-F-H-L- require an evidentiary hearing in most cases, and federal courts such as Ren v. Holder and Li Hua Lin v. DOJ have held that restricting testimony violates due process.
7. Can I challenge a pretermission ruling?
Yes. You may challenge it through:
A Motion to Reconsider, and/or
An appeal to the BIA.
These are especially strong where the IJ misapplied the law, denied the opportunity to file additional relief, or treated pretermission as case-ending.
8. What are common legal errors judges make when pretermitting applications?
Common errors include:
Treating the absence of a personal declaration as making the I-589 “incomplete,”
Pretermitting one application and declaring the case “over,”
Issuing a removal order without adjudicating all relief applications,
Refusing to allow new filings while the case remains open.
These errors contradict BIA precedent and federal law.
9. How does hiring an attorney early reduce the risk of pretermission?
Correct, complete filings greatly reduce the risk of pretermission.
Professional representation ensures:
Properly completed I-589s and other forms,
Strategic preparation of supporting documents,
Timely and accurate filings, and
Immediate identification and preservation of judicial errors.
Early counsel is particularly important in today’s high-pressure environment.
10. What should I do immediately if my application has been pretermitted?
Act quickly:
Determine whether the case is still open.
If so, request permission to file a new or corrected application.
Clarify what other forms of relief remain available.
Consult experienced counsel promptly.
File the appropriate motion or appeal.
A pretermission ruling is often reversible when handled correctly.
11. Does pretermission always indicate judicial error?
Not always. If the application truly fails as a matter of law, pretermission may be appropriate.
However, many recent pretermission rulings reflect misapplications of law or systemic pressure — and those are challengeable.
12. Is this problem limited to specific cities or courts?
No. Improper pretermission can occur anywhere in the country.
The legal standards governing proper adjudication are national, and the structural pressures on IJs are system-wide.
Other Helpful Resources:
See Also:
CIL Guide to the Circumvention of Lawful Pathways Rule
