Procedural Abandonment in Asylum Proceedings: A Cautionary Advisory
Date of Information: 06/28/2025
Check back soon; we update these materials frequently.
Legal Standards Governing Abandonment Determinations
I. Required Documents Versus Evidentiary Completeness
The BIA has directly addressed the limits of judicial discretion in treating asylum filings as abandoned. In Matter of Interiano-Rosa, 25 I. & N. Dec. 264 (BIA 2010), the Board held that while supporting documents (such as declarations, country reports, or affidavits) may assist in meeting the burden of proof, their absence does not render an application “abandoned” if the I-589 itself is timely and facially complete. Rather, the IJ must evaluate whether any missing information impairs the applicant’s ability to meet the applicable standard of proof—not dismiss the application outright.
However, not all documents fall within the category of discretionary supplementation. A passport or other identity document is not “supplementary”—it is mandatory. Under 8 C.F.R. § 1208.3(a)(2), asylum applicants must submit a copy of their passport or other identity document, or provide a written explanation for its absence. The Form I-589 Instructions reiterate this requirement, stating: “You must submit a copy of your passport, or an explanation as to why you do not have one.”
Therefore, while the absence of a declaration or supporting evidence cannot form the basis for abandonment without an evidentiary hearing, the absence of a passport does raise a compliance issue. However, the regulation still requires that the applicant be notified of the deficiency and given an opportunity to correct or explain it. A removal order entered without affording this opportunity is both procedurally defective and legally impermissible.
II. The Presumption of Good Faith and the Necessity of Adequate Notice
Under 8 C.F.R. § 1208.3(c)(3), an Immigration Judge who determines that an asylum application filed with the court is incomplete must provide written notice of the deficiency. That notice must clearly identify what is lacking and afford the applicant a meaningful opportunity to remedy the omission. This requirement implements a foundational principle of administrative law: that regulated parties are entitled to notice and an opportunity to cure before the imposition of adverse consequences.
Oral advisals—especially those unmemorialized in the record—do not satisfy this requirement. Nor can procedural expectations be retroactively enforced absent clear contemporaneous documentation.
III. Matter of C-A-R-R-: The Adjudicator’s Obligation to Proceed to Hearing
In Matter of C-A-R-R-, 28 I. & N. Dec. 714 (BIA 2023), the Board reaffirmed that Immigration Judges must conduct evidentiary hearings unless the application is facially deficient or barred as a matter of law. The Board emphasized that credibility assessments, eligibility findings, and discretionary evaluations must occur on a developed record, not through procedural shortcuts.
Where, as here, the application was filed, docketed, and facially sufficient—and where no written deficiency notice was issued—the IJ’s refusal to proceed to a hearing contravenes C-A-R-R- and violates the statutory and regulatory framework governing asylum adjudications.
Due Process Considerations and the Role of Counsel
The Due Process Clause of the Fifth Amendment applies fully to removal proceedings. See Reno v. Flores, 507 U.S. 292, 306 (1993); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens.”). At its core, due process requires that noncitizens be given notice and a meaningful opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011).
An Immigration Judge's denial of relief based on an undocumented, allegedly oral procedural directive—particularly one issued while the respondent was unrepresented—violates these fundamental protections. Such a denial, devoid of any contemporaneous record or written notice, cannot constitute meaningful notice under Mathews and its progeny. See also Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999) (finding a due process violation where the agency relied on unannounced expectations not shared with the applicant).
Moreover, where counsel has subsequently entered an appearance, the failure to inform the attorney of preexisting procedural expectations—particularly those that might give rise to a finding of abandonment—undermines both fairness and the adversarial integrity of the process. The Second Circuit has held that “an alien’s due process rights are violated when she is deprived of the opportunity to present her case effectively through counsel.” Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990); see also Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991) (holding that EOIR’s failure to follow its own procedural rules regarding representation constituted reversible error).
In short, due process is not satisfied by vague recollections of oral orders—particularly when the respondent was pro se, the directive was never reduced to writing, and newly retained counsel was given no opportunity to respond. The Constitution and the immigration regulations alike demand procedural fidelity.
Remedies and Reconsideration
Respondents whose applications have been dismissed as “abandoned” without proper notice or the opportunity to cure may be entitled to one or more of the following remedies:
Motion to Reopen or Reconsider, pursuant to 8 C.F.R. §§ 1003.2 or 1003.23;
Appeal to the BIA, where the IJ’s order is inconsistent with binding precedent or regulatory authority;
Petition for Review in the U.S. Court of Appeals, based on due process violations or legal error.
Prompt legal action is critical. Respondents should consult experienced counsel immediately to preserve their rights.
Conclusion: Procedural Fidelity Is Not Optional
Immigration Judges do not have unbounded discretion to dispose of asylum claims on procedural grounds. The decision to treat an application as abandoned must be anchored in specific regulatory authority, supported by the record, and compliant with due process.
Act Now to Preserve Your Rights
If your application was deemed abandoned or denied without a hearing, you may still have time to take legal action. Let us help you assert your rights and protect your future.
Other Helpful Resources:
See Also:
CIL Guide to the Circumvention of Lawful Pathways Rule
