Can an Immigration Judge Deny Asylum Without a Full Hearing? Understanding Matter of H-A-A-V-

Can an Immigration Judge Deny Asylum Without a Full Hearing? Understanding Matter of H-A-A-V-

For decades, asylum applicants generally expected that they would have an opportunity to testify before an Immigration Judge, explain what happened to them, present witnesses and supporting evidence, and respond to questions about their fear of returning home.

That expectation can no longer be taken for granted.

In Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), the Board of Immigration Appeals held that an Immigration Judge may “pretermit”—or dispose of—an application for asylum, withholding of removal, or protection under the Convention Against Torture without conducting a full evidentiary hearing.

However, this authority is not unlimited.

An Immigration Judge may pretermit an application only when the applicant’s factual allegations, accepted as true and considered in the light most favorable to the applicant, still fail to establish prima facie eligibility for protection.

This distinction is critically important. Matter of H-A-A-V- does not authorize Immigration Judges to resolve credibility disputes, ignore material factual questions, or choose between competing versions of events without testimony. The decision addresses legally insufficient claims—not claims that depend on facts that remain disputed or require further development.

For asylum applicants and their attorneys, the practical message is clear: the Form I-589, declaration, legal theory, and supporting evidence must present a recognizable claim from the beginning. Waiting until the individual hearing to explain the case may be too late.

What Does It Mean to Pretermit an Asylum Application?

Pretermission means that an Immigration Judge ends consideration of an application without holding a complete merits hearing.

The process resembles, in some respects, a motion to dismiss in federal civil litigation. A civil court may dismiss a complaint when, even assuming that its factual allegations are true, the complaint does not state a legally valid claim. Likewise, under Matter of H-A-A-V-, an Immigration Judge may determine that an asylum application is legally deficient even after giving the applicant the benefit of the factual allegations.

The BIA’s official decision explains that pretermission may be appropriate when there are no material factual disputes requiring testimony and the alleged facts do not create a reasonable likelihood that the applicant can satisfy the legal elements of relief. Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025)

This does not mean that Immigration Judges may deny any weak-looking case without a hearing. A Judge must distinguish between two very different situations:

1. The facts are accepted, but they do not amount to a legally cognizable asylum claim; or
2. The claim may succeed depending on disputed facts, context, motive, credibility, corroboration, or country conditions.

The first situation may permit pretermission. The second ordinarily requires an evidentiary hearing.

The Statutory Right to Present Evidence

Removal proceedings are governed by important procedural protections.

Under INA § 240(b)(4)(B), a person in removal proceedings must receive a reasonable opportunity to examine the evidence presented against them, offer evidence in their own defense, and cross-examine government witnesses, subject to limited national-security exceptions.

INA § 240(c)(4)(B) also contemplates that the Immigration Judge will evaluate the applicant’s testimony, witness testimony, and other evidence in determining whether the applicant carried the burden of proof.

The asylum regulations state that an Immigration Judge decides an application after an evidentiary hearing to resolve disputed factual issues. They further provide that, during such a hearing, the applicant is examined under oath and may present evidence and witnesses. See 8 C.F.R. § 1240.11(c)(3) and (c)(3)(iii). These procedural provisions also apply to claims under the Convention Against Torture. See Matter of C-B-, 25 I&N Dec. 888 (BIA 2012).

Matter of H-A-A-V- interprets these protections as requiring an evidentiary hearing when factual issues must be resolved—not automatically whenever a Form I-589 has been filed.

Immigration Judges also possess broad authority to manage their courtrooms and regulate the course of proceedings. See INA § 240(b)(1), 8 C.F.R. §§ 1003.10(b), 1240.1(c), and Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010).

The central legal question is therefore whether the application presents a disputed factual matter or merely a legal deficiency.

What Happened in Matter of H-A-A-V-?

The respondent was a citizen of Peru who based his requests for asylum, withholding of removal, and CAT protection on extortion by criminal gangs.

At a master calendar hearing, the Department of Homeland Security moved to pretermit the applications. The Immigration Judge asked the respondent’s attorney whether material facts remained in dispute and allowed counsel to identify any proposed particular social group supporting the claim.

Counsel did not identify a legally cognizable particular social group or explain why disputed facts required a full hearing.

The case arose within the jurisdiction of the Fifth Circuit, where precedent holds that economic extortion, without more, does not constitute persecution under U.S. asylum law. See Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015); Castillo-Enriquez v. Holder, 690 F.3d 667 (5th Cir. 2012).

The Form I-589 did not allege additional forms of harm beyond extortion, identify specific future violence, or connect the feared mistreatment to race, religion, nationality, political opinion, or membership in a particular social group.

The BIA therefore concluded that even if the allegations were accepted as true, the respondent had not established prima facie eligibility for any of the requested protections.

What Is Prima Facie Eligibility?

Prima facie eligibility means that the applicant has shown a reasonable likelihood of satisfying the legal requirements for the requested relief. See Matter of L-O-G-, 21 I&N Dec. 413, 419 (BIA 1996).

This is not supposed to be a final decision on credibility or the ultimate merits. It is a preliminary inquiry into whether the alleged facts, if proved, could support relief.

In considering pretermission, an Immigration Judge must:

• Accept the applicant’s factual allegations as true;
• Draw reasonable inferences in the applicant’s favor;
• Consider all alleged harm cumulatively;
• Avoid resolving credibility disputes;
• Avoid weighing competing evidence as though the merits hearing had already occurred; and
• Determine whether the facts could satisfy the applicable legal standard.

If the answer depends on a material factual question, the claim should generally proceed to a hearing.

Why All Harm Must Be Considered Together

One significant limit on pretermission is the rule that alleged persecution must be evaluated cumulatively.

An Immigration Judge should not isolate every incident and dismiss it separately as insufficient. Threats, surveillance, harassment, detention, physical mistreatment, employment consequences, attacks on family members, and other forms of intimidation may become persecution when considered together, even if one incident standing alone would not cross the legal threshold.

The Second Circuit has repeatedly required the agency to assess mistreatment in the aggregate. See Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005) and KC v. Garland, 108 F.4th 130 (2d Cir. 2024).

The BIA similarly emphasized cumulative review in Matter of E-M-F-S-, 29 I&N Dec. 379 (BIA 2026).

An applicant also does not need to prove past persecution to establish asylum eligibility. A person who cannot show sufficiently severe past harm may still demonstrate a well-founded fear of future persecution.

Consequently, an Immigration Judge should not pretermit a claim merely because the events that occurred before the applicant left the country did not independently constitute past persecution. The allegations concerning future risk must also receive meaningful consideration.

Death Threats May Require Factual Development

Threat-based cases demonstrate why pretermission must be used cautiously.

Matter of E-M-F-S- states that death threats, without more, will not ordinarily constitute persecution unless they are objectively credible and come from someone with the immediate ability to carry them out.

But questions concerning the seriousness and credibility of a threat are often factual.

Who made the threat? Did that person have access to the applicant? Had the persecutor harmed others? Did the persecutor have connections to government officials, police, security forces, organized crime, or military authorities? Was the applicant followed or located after moving? Were relatives threatened? Did the persecutor possess weapons or operational control over the area?

These facts may demonstrate that a threat was concrete, imminent, and capable of being carried out. When such facts are alleged, an Immigration Judge should not simply label the threats speculative and deny the application without allowing testimony and supporting evidence.

Federal circuits also apply different approaches to threats. The First, Fourth, and Sixth Circuits have recognized that credible death threats may constitute persecution, particularly when aggravating circumstances are present. Other circuits emphasize whether the person making the threat had the capacity and opportunity to carry it out. The Second, Eighth, and Tenth Circuits generally apply a demanding standard, looking for threats that are concrete, imminent, or exceptionally menacing.

The controlling law of the federal circuit where proceedings are completed can therefore affect whether a threat-based claim is legally sufficient.

Matter of Fefe No Longer Guarantees Testimony in Every Case

In Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), the BIA stated that an Immigration Judge ordinarily should not decide a written asylum application without placing the applicant under oath and conducting at least a basic examination.

The BIA later reaffirmed the importance of a merits hearing in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014). However, the Attorney General vacated that decision in 2018.

Matter of H-A-A-V- held that Matter of Fefe is no longer binding. The BIA reasoned that Fefe relied on regulations that are no longer in effect and predated the current statutory structure created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

As a result, applicants may no longer rely on Fefe as an absolute guarantee that every filed asylum application will receive a full testimonial hearing.

There is an important protection for unrepresented applicants. If a person appears without an attorney, the Immigration Judge must place the applicant under oath and confirm that the application is complete and correct before determining whether the claim establishes prima facie eligibility. Matter of H-A-A-V-, 29 I&N Dec. at 237 n.5.

Counsel’s Concessions Can Bind the Applicant

Immigration attorneys must be extremely careful when responding to a motion to pretermit.

Matter of H-A-A-V- confirms that an Immigration Judge may rely on counsel’s representation that no factual issues remain in dispute. Formal admissions and concessions by an attorney generally bind the client. See Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986).

When DHS moves to pretermit, counsel should identify every material factual question requiring a hearing. This may include:

• The persecutor’s motive;
• Whether the government was involved or unwilling to provide protection;
• Whether a threat was credible and imminent;
• Whether mistreatment was politically motivated;
• Whether criminal charges were legitimate or pretextual;
• Whether internal relocation would be reasonable;
• Whether the applicant’s proposed social group is socially distinct;
• Whether multiple incidents cumulatively constituted persecution;
• Whether country conditions create an objectively reasonable future fear; or
• Whether officials would acquiesce in torture.

An unqualified statement that the facts are undisputed may unintentionally remove these issues from the case.

Incomplete I-589 Applications and the Opportunity to Cure

Pretermission based on legal insufficiency is different from rejecting or treating an asylum application as abandoned because it is incomplete.

Under 8 C.F.R. § 1208.3(c)(3), an application may be considered incomplete when it is unsigned, omits answers to required questions, or lacks required materials. The regulation generally provides an opportunity to correct deficiencies and refile within 30 days.

In Matter of C-A-R-R-, 29 I&N Dec. 13 (BIA 2025), the BIA held that a complete Form I-589 requires a specific and substantive response to every question. An incomplete application may be treated as waived or abandoned, particularly when the applicant received an opportunity to correct it and failed to do so.

Several limitations are critical.

First, the opportunity to cure should not be ignored. Treating an application as abandoned is particularly appropriate only after the applicant has been notified of the deficiency and given the required opportunity to correct it.

Second, an asylum declaration is not formally part of the Form I-589 for determining whether the form itself is complete. An application should not be deemed abandoned solely because a separate declaration was not submitted.

Failure to provide a declaration can still be damaging. The Immigration Judge may determine that the applicant waived the opportunity to submit it, and its absence may affect whether the applicant met the burden of proof. Nevertheless, that is different from declaring the Form I-589 incomplete.

Third, a missing signature is ordinarily a curable defect under the same regulatory framework. It should not automatically produce a harsher result than other correctable deficiencies.

Correcting an Application Does Not Automatically Create a New Filing

The completeness rules must also be separated from the one-year asylum deadline.

Asylum applicants ordinarily must file within one year of their last arrival in the United States unless they qualify for a changed-circumstances or extraordinary-circumstances exception. See INA §§ 208(a)(2)(B) and (D).

A potential dispute arises when an applicant timely filed an I-589 but later corrected or supplemented the form after the one-year anniversary.

Under Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015), a later application is treated as a new application when it presents a previously unraised basis for relief or rests on a new or substantially different set of facts. A submission that merely clarifies, expands, or slightly modifies the original claim is not necessarily a new application.

Therefore, correcting an incomplete but timely application does not automatically turn it into a late application. If the corrected filing relies on the same protected ground and the same essential factual events, it may remain tied to the original filing date.

This issue must be analyzed carefully because changing the fundamental theory or factual basis of the claim may lead the court to treat the later submission as a new application.

Anticorruption Claims and Political Opinion

Claims based on opposition to government corruption may be particularly resistant to pretermission because they frequently depend on the persecutor’s motive.

In Matter of N-M-, 25 I&N Dec. 526 (BIA 2011), the BIA recognized that opposition to state corruption can constitute actual or imputed political opinion. However, retaliation against a whistleblower is not automatically persecution on account of political opinion. The applicant must demonstrate that political opinion was at least one central reason for the harm.

Relevant evidence may show:

• Whether the applicant’s conduct could be viewed as expressing an anticorruption belief;
• Whether the applicant reported, exposed, or publicly criticized corruption;
• Whether the persecutor referred to the applicant’s beliefs or activities;
• Whether the corrupt conduct was connected to senior officials or the governing regime;
• Whether the applicant attempted to organize or assist other victims; and
• Whether the retaliation was intended to suppress a perceived political challenge.

The Second Circuit has rejected a categorical rule separating opposition to corruption from political disputes. See Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) and Castro v. Holder, 597 F.3d 93 (2d Cir. 2010).

Because motive can be established through direct or circumstantial evidence, a properly pleaded anticorruption claim should not be pretermitted merely because the government describes the dispute as personal or economic. If motive remains disputed, the applicant should be allowed to present evidence.

Pretextual Prosecution and Refusal of Military Service

A government generally has the right to enforce neutral criminal laws. Prosecution for violating a legitimate law is not ordinarily persecution.

But criminal charges may be used as a pretext to punish political opponents, journalists, activists, whistleblowers, or other disfavored individuals. Factors such as disproportionate punishment, selective enforcement, fabricated evidence, abusive detention, and the broader political environment may reveal that the supposed prosecution is actually political persecution. See Jin Jin Long v. Holder, 620 F.3d 162 (2d Cir. 2010); Vumi v. Gonzales, 502 F.3d 150 (2d Cir. 2007); Shuqiang Tian v. Bondi, 130 F.4th 284 (2d Cir. 2025).

Military-service cases require similar care. A country may ordinarily require its citizens to perform military service, and lawful punishment for draft evasion does not automatically constitute persecution. See Matter of A-G-, 19 I&N Dec. 502 (BIA 1987).

An asylum claim may nevertheless exist when the punishment would be disproportionately severe because of the applicant’s political opinion or another protected ground, or when the person would be forced to participate in military conduct condemned by the international community. See Islami v. Gonzales, 412 F.3d 391 (2d Cir. 2005).

These cases usually depend on political context, government motive, the nature of the military activity, and the expected punishment. Such factual questions ordinarily should not be resolved through summary pretermission.

Circuit Law Matters

Matter of H-A-A-V- is a nationwide BIA precedent, but the substantive asylum law of the controlling federal circuit remains essential.

A claim that is legally sufficient in New York, which falls within the Second Circuit, may be evaluated differently in another jurisdiction. Courts vary in their treatment of death threats, anticorruption activities, particular social groups, government acquiescence, nexus, and other issues.

Some federal courts have also recognized an Immigration Judge’s affirmative duty to help develop the record. The Fourth Circuit applied this obligation broadly in Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021), while the Ninth Circuit discussed the duty in Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000).

These authorities may limit pretermission when the record remains materially undeveloped, especially for an unrepresented or vulnerable applicant.

Due Process Still Requires a Meaningful Opportunity to Be Heard

The Fifth Amendment guarantees a fundamentally fair removal proceeding.

Matter of H-A-A-V- concluded that due process can be satisfied when the applicant appears before an Immigration Judge, pleads to the charges, receives an opportunity to file an application and supporting evidence, and nevertheless fails to demonstrate prima facie eligibility either in writing or orally.

But this conclusion does not eliminate the requirement of a meaningful opportunity to present a claim.

Pretermission may violate the governing law or due process when:

• The Immigration Judge resolves disputed facts without testimony;
• The Judge fails to accept the applicant’s allegations as true;
• The alleged harm is not considered cumulatively;
• The applicant is prevented from identifying a protected ground or legal theory;
• A material amendment or timely supporting evidence is improperly rejected;
• The court decides credibility without examining the applicant;
• The applicant was not given the regulatory opportunity to cure an incomplete form;
• The decision depends on motive, government involvement, or another unresolved factual question; or
• The applicant’s attorney specifically identifies material disputes requiring testimony, but the Judge fails to address them.

An unfavorable legal ruling by itself does not establish judicial bias. Nevertheless, the Immigration Judge must remain neutral, consider the applicant’s arguments, and apply the pretermission standard correctly.

How Asylum Applicants Can Protect Their Cases

Matter of H-A-A-V- makes the quality of the initial filing more important than ever.

A properly prepared asylum application should:

• Answer every Form I-589 question completely and substantively;
• Include a detailed, internally consistent personal declaration;
• Identify the protected ground connected to each form of harm;
• Clearly delineate every proposed particular social group;
• Explain the persecutor’s motive using direct and circumstantial facts;
• Address why the government could not or would not provide protection;
• Explain why internal relocation is unavailable or unreasonable;
• Present relevant country-conditions evidence;
• Describe all incidents of harm and their cumulative effect;
• Explain the seriousness, credibility, and immediacy of any threats;
• Develop independent theories for asylum, withholding of removal, and CAT protection; and
• Address the one-year filing deadline and any applicable exception.

When DHS files a motion to pretermit, the response should not rely on broad statements that the applicant deserves a hearing. It should identify the precise allegations establishing prima facie eligibility and the particular factual disputes that cannot lawfully be decided without testimony.

If the Immigration Judge nevertheless pretermits the application, counsel must preserve the issues for appeal. That includes making a clear proffer of the testimony and evidence the applicant would have presented and explaining how those facts could satisfy the governing legal standard.

Conclusion

Matter of H-A-A-V- did not change the statutory definition of a refugee. It did not eliminate withholding of removal or CAT protection. It did not authorize Immigration Judges to decide credibility or contested factual issues without testimony.

What it changed is the stage at which the legal sufficiency of an asylum claim may be tested.

An asylum applicant can now lose before reaching a full merits hearing if the application, accepted as true, does not present a recognizable legal claim. At the same time, the decision preserves important limitations: the allegations must be viewed favorably, all harm must be considered cumulatively, and genuine factual disputes must be resolved through a hearing.

A truthful claim is not always a legally sufficient claim. The facts must be presented with detail, connected to the applicable protected ground, supported by evidence, and framed under the correct law.

If DHS has moved to pretermit your asylum application—or if you are preparing for proceedings in Immigration Court—speak with an experienced asylum and deportation defense lawyer as early as possible. Effective legal preparation may determine whether you receive the opportunity to testify or whether the court attempts to decide your case on the written record alone.

The Law Office of Alena Shautsova represents individuals in asylum proceedings, removal defense matters, BIA appeals, and motions to reopen. To learn more or schedule a paid consultation, visit www.shautsova.com.

This article provides general information and does not constitute legal advice. Immigration cases are fact-specific, and legal standards may vary depending on the federal circuit and subsequent changes in law.