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BIA Lets Immigration Judges Shelve Asylum Claims on Their Own
On September 29, 2026, the Board of Immigration Appeals (BIA) issued a precedent decision, Matter of G-R-B-, 30 I&N Dec. 102. It holds that an Immigration Judge may pretermit an application for asylum and withholding of removal without a motion from the Department of Homeland Security (DHS). The ruling changes how asylum cases can end.
“Pretermit” is legal jargon. It means denying an application without a hearing when it fails to establish a prima facie case for relief. In plain terms, the judge reads the paperwork and decides the case on the page, before the applicant testifies.
As always, our EB1A consultants have dived into the details of this important news and what it means for the asylum applicants in general.
The case and its consequences
The respondent is a native and citizen of Mexico who feared private-actor harm based on his race and membership in a particular social group. He sought asylum, withholding of removal and protection under the Convention Against Torture. The immigration judge pretermitted the application on May 5, 2026, without holding an evidentiary hearing.
The judge’s findings were blunt. The respondent alleged no prior harm rising to persecution and identified no specific evidence of a well-founded fear of future persecution on account of race. He also showed no past torture and no evidence of likely future torture. The judge also found his proposed social group not cognizable and his claim filed outside the one-year deadline. On appeal he did not meaningfully challenge those last two findings, so the Board deemed them waived. His counsel was Alex M. Torres of Bellaire, Texas. The panel was Deputy Chief Appellate Immigration Judge Gorman and Appellate Immigration Judges Gallow and Hansell.
The Board’s reasoning in this case
The respondent made two arguments, and the Board rejected both.
First, he said the judge should have developed the record further. The Board pointed to its 2025 decision in Matter of H-A-A-V-, which held that an Immigration Judge need not conduct an evidentiary hearing where an application does not set forth a prima facie claim. It also noted he had identified no evidence the judge overlooked.
Second, he argued that only DHS can trigger pretermission. The Board answered with the burden of proof. An applicant in removal proceedings “bears the burden of proof to demonstrate eligibility for the relief sought.” An agency need not hold a hearing where the record shows no genuine and substantial factual issue, and Immigration Judges have broad discretion over proceedings. The Board also found that he cited no legal authority limiting this determination to cases where DHS files a motion.
Two footnotes matter. The Board said cases the respondent cited from outside the Fifth Circuit were not binding, and it was not persuaded that the judge lacked impartiality. It dismissed the appeal.
What actually changes as consequence of this case
Pretermission is not new. The change is who can start it. According to a sponsored column by the Law Office of James Montana, a DHS motion used to give applicants notice that their case was in danger and a chance to respond. Another analysis notes that before G-R-B-, an applicant could plausibly argue that the absence of a DHS motion meant the case would proceed to hearing. That argument is now closed.
The Montana column is blunter, warning that the judge can now “act as both prosecutor and decision-maker” on whether a case gets a hearing. It is advocacy, and readers should weigh it that way.
The ruling follows a year of pretermission fights. The Center for Gender & Refugee Studies tracks several 2026 Board decisions, including rulings that oral motions to pretermit give sufficient notice of third-country removal under an asylum cooperative agreement (ACA). It also records that DHS paused filing new ACA-based pretermission motions, without stating reasons. One analysis cautions that public data makes it significantly harder to identify judges pretermitting without a DHS motion. No one can yet measure how often judges will use their new freedom.
The backdrop: a court in transition
The decision lands amid a transformed immigration bench. Syracuse University’s TRAC reported on August 31 that 279 immigration judges were fired or resigned during fiscal years 2025 and 2026. That is about 38% of the 735 judges employed at the end of fiscal 2024. TRAC also found that three-fourths of the 130 judges who sat throughout fiscal 2021 to 2026 denied a larger share of asylum cases in 2026 than in 2021, with a median increase of 28 percentage points. In June 2026 the grant rate fell to 5.5 percent and the denial rate rose to 94.1 percent. Only 771 people were granted asylum that month.
TRAC’s figures predate G-R-B- and do not measure pretermission. The Montana column links them, predicting that judges will use the new power to deny asylum cases in large numbers. That is a forecast, not a finding. NBC San Diego’s coverage of the TRAC report adds a point that cuts the other way: an asylum denial produces a removal order that is not final and can be appealed.
What applicants should do
The practical advice from lawyers is consistent. One firm says the ruling confirms the written application may be the applicant’s only opportunity. They recommend a detailed declaration explaining the fear of harm, a clear link to a protected ground, and country-conditions and corroborating evidence filed early. Anyone appealing a pretermission should address every ground the judge relied on, because issues not developed on appeal will likely be deemed waived. The Montana firm adds two points: do not file a bare-bones Form I-589, and define any particular social group clearly in the initial application.
Our EB1A experts consistently write detailed value adding analysis and insights on the latest twist and turns in the US immigration landscape. Get in touch with us to stay tuned to the latest immigration updates. We wish you a safe and stress free immigration journey ahead.
Frequently Asked Questions
1. What does “pretermit” mean?
It means a judge denies an application without a full hearing because, on paper, it does not establish a prima facie case for relief (Damast 2026).
2. What did Matter of G-R-B- decide?
An immigration judge may pretermit asylum and withholding applications without a DHS motion (BIA 2026).
3. When was it decided, and where is it published?
It was decided September 29, 2026, and appears at 30 I&N Dec. 102, Interim Decision #4252.
4. Does it apply to every asylum case?
It covers asylum and withholding of removal where the application does not set out a prima facie claim. The respondent here also sought Convention Against Torture protection, and the Board found no prima facie claim there either (BIA 2026).
5. Can a judge skip a hearing even if the applicant wants one?
Yes, if the application and evidence fail on their face. The Board said no hearing is needed where no genuine and substantial factual issue exists (BIA 2026).
6. Why did the respondent lose?
He alleged no persecution or torture, offered no evidence of future harm, and did not meaningfully contest the findings on social group and timeliness (BIA 2026).
7. Is this ruling binding?
It is a precedent decision of the Board. The Board applies circuit law in cases arising in a given circuit, and this case arose in the Fifth Circuit (BIA 2026).
8. Can a pretermitted applicant appeal?
Yes. A denial results in a removal order that is not final and can be appealed (NBC San Diego 2026). Every ground the judge relied on should be addressed.
9. How can applicants protect themselves?
File a thorough I-589 with a detailed declaration, clear social-group definitions where relevant, and corroborating evidence, and consult an immigration attorney.
Sources & further readings
- Board of Immigration Appeals. Matter of G-R-B-, 30 I&N Dec. 102 (BIA 2026). Interim Decision #4252. Decided September 29, 2026. Washington, DC: U.S. Department of Justice, Executive Office for Immigration Review. https://www.justice.gov/eoir/media/1463256/dl.
- bklg Blog. “No Hearing Necessary.” n.d. Accessed October 7, 2026. https://bklg.org/blog/pretermission-03-26/.
- Center for Gender & Refugee Studies. “Motions to Pretermit in Immigration Court: Updates and Resources from CGRS.” UC Law San Francisco. Accessed October 7, 2026. https://cgrs.uclawsf.edu/en/pretermission.
- Damast, Sabrina. “BIA Holds Immigration Judges May Pretermit Asylum Applications Without a DHS Motion.” Law Office of Sabrina Damast, Inc., October 6, 2026. https://www.sabrinadamast.com/journal/2026/10/6/bia-holds-immigration-judges-may-pretermit-asylum-applications-without-a-dhs-motion.
- International Legal and Business Services Group. “BIA Rules Immigration Judges Can Pretermit Asylum Claims Without a DHS Motion.” September 30, 2026. https://bizlegalservices.com/2026/09/30/bia-rules-immigration-judges-can-pretermit-asylum-claims-without-a-dhs-motion/.
- Law Office of James Montana PLLC. “DOJ to Immigration Judges: Just Deny the Cases Without Trial!” Sponsored column. ARLnow, October 1, 2026. https://www.arlnow.com/2026/10/01/doj-to-immigration-judges-just-deny-the-cases-without-trial-mon1/.
- NBC San Diego. “Asylum Denial Rate Climbs to 94%, New Report Says.” September 3, 2026. https://www.nbcsandiego.com/news/local/asylum-denial-rate-climbs-94-new-report-says/4069372/.
- Novo Legal. “Matter of G-R-B- Explained: BIA Expands Asylum Pretermission Power.” n.d. Accessed October 7, 2026. https://www.novo-legal.com/en/blog/bia-matter-g-r-b-asylum-pretermission-immigration-judge.
- Transactional Records Access Clearinghouse (TRAC), Syracuse University. “Asylum Denials Rise to 94% Amid the Remaking of the Immigration Court.” August 31, 2026. https://tracreports.org/reports/779/.
