Pretermission and Non-Refoulement: A Growing Tension in U.S. Asylum Law
Over the past year, immigration attorneys have observed a once-rare procedural mechanism become commonplace in U.S. immigration courts: “pretermission.”[i] Pretermission is the act of terminating an I-589 application for Asylum, Withholding of Removal, or Protection under the Convention Against Torture (“CAT”) before the applicant’s evidentiary hearing.[ii] Given the rise in motions to pretermit, a growing number of asylum seekers have had their applications dismissed at the initial procedural stage, before they have had the opportunity to file evidence in support of their claims.[iii]
On April 11, 2025, the Executive Office for Immigration Review (“EOIR”) issued Policy Memo 25-28, granting immigration judges the right to pretermit applications when an applicant’s claim is found “legally deficient.”[iv] However, the memo failed to outline what constitutes a “legally deficient” application.[v] In September 2025, the Board of Immigration Appeals (“BIA”) held that if the factual allegations underlying an asylum claim do not establish prima facie eligibility for relief, an immigration judge may pretermit the application without an evidentiary hearing on the merits.[vi] In its decision, the BIA elaborates that, in order to meet prima facie eligibility, the applicant must sufficiently establish a nexus between the harm they experienced in their home country and a cognizable category of persecution under asylum law (i.e., race, religion, nationality, political opinion, and membership in a particular social group).[vii]
Since the issuance of Policy Memo 25-28 and the subsequent BIA decision, Department of Homeland Security attorneys have utilized pretermission to address the backlog of over three million cases in U.S. immigration courts.[viii] In November 2025 alone, DHS filed nearly 5,000 motions to pretermit.[ix] Frequently, DHS attorneys make motions to pretermit without briefing or providing advanced notice to the respondent.[x]
Immigration advocates have raised concerns that pretermission is an inappropriate and inadequate response to resolve the growing backlog in immigration courts.[xi] Immigration advocate Georgianna Pisano Goetz has likened the practice to a “summary judgment analog without the procedural protections that make summary judgment fair.”[xii] The U.S.'s pretermission policy is particularly troubling for the nearly half of asylum seekers who undergo proceedings unrepresented.[xiii] For pro se respondents, navigating the requirements for a legally sufficient I-589 application without legal representation presents substantial due-process challenges. Against this backdrop, these concerns raise a deeper question: whether the United States’ approach is consistent with its obligations under international refugee law.
U.S. asylum law is grounded in international refugee law, namely the 1951 U.N. Convention Relating to the Status of Refugees (“Refugee Convention”) and the 1988 U.N. Convention Against Torture.[xiv] Although the U.S. is not a direct party to the Refugee Convention, it ratified the 1967 Protocol Relating to the Status of Refugees (“Refugee Protocol”) in 1968.[xv] By ratifying the Refugee Protocol, the U.S. became bound by Articles 2 through 34 of the Refugee Convention, including the principle of non-refoulement set forth in Article 33.[xvi]
Non-refoulement is a core principle under international refugee law. Under Article 33, “[n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”[xvii] In Sale v. Haitian Centers Council, the U.S. Supreme Court found that the non-refoulement principle applies to State parties once a refugee is within the State’s territory, even if the refugee is not yet a resident.[xviii]
A persistent tension in international refugee law is the conflict between protecting State sovereignty and enforcing international refugee protections. While States generally have discretion to implement and enforce domestic laws without interference, those laws must remain in conformity with international protections to which the State has acceded.[xix] Neither the Refugee Convention nor the Refugee Protocol mandates specific procedural protections during refugee determinations.[xx] Although the expansive use of pretermission does not violate the letter of the law, it risks undermining its underlying purpose.
The broad use of pretermission in asylum cases raises serious concerns under the principle of non-refoulement. Dismissing an application without a full evidentiary hearing creates a substantial risk that individuals will be returned to countries where they face persecution. This risk is particularly salient for applicants without access to legal representation. Although pro se respondents may not sufficiently establish nexus in their applications, they may still possess sufficient evidence and testimony to establish eligibility for relief during an evidentiary hearing. Consequently, the U.S. should revise its current pretermission policy to ensure adequate protections for pro se respondents in immigration proceedings, in line with international refugee protections.
Katie Keyser is a staff member of Fordham International Law Journal Volume XLIX.
[i] See Jazmine Ulloa, Allison McCann & Hamed Aleaziz, Trump Administration Pushes Asylum Seekers to Apply in Other Countries, N.Y. Times, Dec. 20, 2025, https://www.nytimes.com/2025/12/20/us/trump-asylum-third-countries.html.
[ii] See Georgianna Pisano Goetz, Asylum Pretermission Ruling Erodes Procedural Protections, Law360, Dec. 2, 2025, https://www.law360.com/articles/2416806/asylum-pretermission-ruling-erodes-procedural-protection.
[iii] See Ulloa et al., supra. note 1.
[iv] See Pretermission of Legally Insufficient Applications for Asylum, Exec. Off. for Immigration Review, U.S. Dep't of Justice, Policy Memo 25-28, (Apr. 11, 2025), https://www.justice.gov/eoir/media/1396411/dl?inline.
[v] See id.
[vi] See Matter of H-A-A-V-, 29 I&N Dec. 233, 233 (B.I.A. 2025).
[vii] See id. at 236.
[viii] See National Immigration Project & Center for Gender & Refugee Studies, Practice Advisory: Fighting for a Day in Court: Understanding and Responding to Pretermission of Asylum Applications, July 25, 2025 (updated Aug. 27, 2025), https://nipnlg.org/sites/default/files/2025-07/advisory-avoiding-pretermission.pdf; see also TRAC, Immigration Court Quick Facts, TRACReports.org (Dec. 2025), https://tracreports.org/immigration/quickfacts/eoir.html.
[ix] See Ulloa et al. supra. note 1.
[x] See Pisano Goetz, supra. note 2.
[xi] See Pisano Goetz, supra. note 2; see also National Immigration Project & Center for Gender & Refugee Studies, supra. note 8, at 1-2.
[xii] Pisano Goetz, supra. note 2.
[xiii] Miriam Jordan, Trump Administration Directs Judges to Deny Asylum Without Hearings, N.Y. Times, Apr. 16, 2025, https://www.nytimes.com/2025/04/16/us/immigration-asylum-judges-policy.html.
[xiv] Margaret Kuehne Taylor & Jeremiah Johnson, Part 1: Closing the Door on Asylum? Pretermission of Asylum Cases in the Trump Era, Am. Bar Ass’n Civ. Rights & Soc. Just. Section, Feb. 10, 2026, https://www.americanbar.org/groups/crsj/resources/on-demand/part-1-closing-the-door-on-asylum/.
[xv] See Senate Consideration of Treaty Doc. No. 90-27, 90th Cong. (1968), https://www.congress.gov/treaty-document/90th-congress/27.
[xvi] See Protocol Relating to the Status of Refugees, art. 1(1), Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
[xvii] See Convention Relating to the Status of Refugees, art. 33, Jul. 28, 1951, 189 U.N.T.S. 137.
[xviii] Sale v. Haitian Ctrs. Council, 509 U.S. 155, 181 (1993).
[xix] See U.N., art. 2(7), June 26, 1945, 1 U.N.T.S. XVI (“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”); see also Vienna Convention on the Law of Treaties, art. 27, May 23, 1969, 1155 U.N.T.S. 331 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”); see also Nishimura Ekiu v. United States, 142 U.S. 651 (1892) (citing Vattel, lib. 2, §§ 94, 100; 1 Phillimore (3d ed.) c. 10, § 220) (“It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”).
[xx] See 189 U.N.T.S. 137; see also 606 U.N.T.S. 267.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.