Status as of 26 July 2026. On 10 July 2026 the Board of Immigration Appeals issued two companion precedent decisions on the safe third country bar to asylum: Matter of E-A-R-M-, 29 I&N Dec. 746 (BIA 2026) (Interim Decision #4216), and Matter of N-E-R-S-, 29 I&N Dec. 753 (BIA 2026) (Interim Decision #4217). Both sustained interlocutory appeals by the Department of Homeland Security, vacated the immigration judges' orders and remanded the records. Both concern the asylum cooperative agreement with Ecuador published at 90 Fed. Reg. 51376 (17 November 2025). The rule and the agreements remain under challenge in U.T. v. Blanche, No. 1:20-cv-00116 (D.D.C.); no decision on the merits had been entered as of this date.
Two precedent decisions issued on the same day by the Board of Immigration Appeals narrow what an immigration judge may examine before an asylum application is pretermitted under an asylum cooperative agreement. The first holds that an oral motion by the government is sufficient notice of its intent to remove an applicant to a third country. The second holds that the government need not produce the instrument setting out how the agreement is actually implemented. This article sets out what each decision held, how the safe third country bar operates, what an immigration judge retains authority to decide, and which categories of applicants the agreement with Ecuador reaches.
In brief
An oral motion to pretermit filed at a hearing satisfies the notice requirement; a written affirmation of intent cannot be demanded by the immigration judge.
The absence of a bilateral implementation instrument is not a permissible ground for finding that an agreement does not apply.
Both decisions were issued on interlocutory appeal, a procedural posture the Board rarely accepts, and both respondents appeared without counsel.
Contents
What the Board decided on 10 July 2026
The Board issued two published decisions on the same day, describing the second as a companion to the first. Both arose from interlocutory appeals filed by the Department of Homeland Security after immigration judges refused to pretermit asylum applications under the asylum cooperative agreement with Ecuador. In both, the appeal was sustained, the immigration judge's order was vacated, and the record was remanded for a prompt determination of whether the safe third country bar applies.
The Board does not ordinarily entertain interlocutory appeals. It explained that it did so in these cases to correct what it described as the recurring misapplication of 8 C.F.R. § 1240.11(h) and of its earlier decision in Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. 291 (BIA 2025), citing Matter of M-D-, 24 I&N Dec. 138, 139 (BIA 2007), for the proposition that interlocutory review may be appropriate to correct recurring problems in the handling of cases by immigration judges.
In both cases the respondents appeared pro se. In the first, they filed no response to the government's appeal.
Why an oral motion now counts as sufficient notice
In Matter of E-A-R-M-, 29 I&N Dec. 746 (BIA 2026), the Board held that the government's oral motion to pretermit was itself sufficient to provide the requisite notice of its intent to remove the respondents to a third country under an asylum cooperative agreement. The requirement that the government give oral or written notice was established in Matter of C-I-G-M- & L-V-S-G-; what the Board added is that an oral motion made at a hearing discharges that requirement in full.
The respondents were a family unit: an adult woman and minor children who are nationals of Venezuela, and an adult man who is a national of Colombia. They entered the United States without inspection on 3 April 2024 and filed applications for asylum, withholding of removal and protection under the Convention Against Torture on 13 September 2024. At a hearing on 28 January 2026 the government moved orally to pretermit those applications on the ground that the respondents could be removed to Ecuador under the agreement.
On 6 March 2026 the immigration judge issued a scheduling order directing the government to confirm in writing whether it intended to remove the respondents to Ecuador, to identify the statutory basis for designating Ecuador as a country of removal, and to state whether it took the position that Ecuador would accept them. The government did not respond. On 24 March 2026 the immigration judge denied the motion, reasoning that without notice of intent there was no disputed issue to resolve.
The Board disagreed. It held that notice had been given when the government moved orally to pretermit, and that the government was not required to file a written affirmation of intent in response to the scheduling order. It further held that the immigration judge erred in declining to designate Ecuador as a country of removal, noting that under 8 C.F.R. § 1241.15 neither the Board nor an immigration judge has jurisdiction to review a determination by the Department of Homeland Security regarding countries to which a person may be removed.
Why the government need not produce the implementing instrument
In Matter of N-E-R-S-, 29 I&N Dec. 753 (BIA 2026), the Board held that the government is not required to provide an implementing instrument showing the operating procedures for an asylum cooperative agreement, or a complete set of operative terms and criteria, in order to establish that a person is subject to the terms of the agreement.
The respondents, nationals of Venezuela, filed their applications on 5 November 2025. The government moved to pretermit on 16 January 2026. On 27 January 2026 the immigration judge denied the motion, finding that the government had not produced the implementing instrument or the complete set of operative terms and criteria needed to show that the respondents fell within the agreement.
The text of the agreement with Ecuador does contemplate such an instrument. It provides that the parties will develop operating procedures to assist with implementation through a subsequent instrument, including criteria to determine eligibility for transfer. The Board's reasoning was that any such subsequent instrument is not part of the agreement itself and is not included in the Federal Register document setting out the agreement and its exceptions. Because 8 C.F.R. § 1240.11(h)(2)(i) confines the immigration judge to asking whether the agreement applies and whether it precludes an asylum application, an instrument outside the published agreement is not a permissible basis for concluding that the agreement does not apply.
The distinction matters for accuracy. What the government was excused from producing is a bilateral instrument between two governments, contemplated by the agreement and published separately if at all. It is not internal departmental guidance, and the decision says nothing about the disclosure of internal agency instructions.
Why this matters. Taken together, the two decisions remove two grounds on which immigration judges had been declining to pretermit asylum applications. A judge may no longer deny a motion to pretermit because notice of intent was given orally rather than in writing, or because no bilateral implementing instrument has been produced. What remains is the applicant's own burden: to show that the agreement does not apply, that a published exception applies, or that persecution on account of a protected ground or torture in the third country is more likely than not.
How the safe third country bar to asylum works
The bar appears at section 208(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(A). A person is ineligible to apply for asylum in the United States if the Attorney General determines that the person may be removed, pursuant to a bilateral or multilateral agreement, to a country other than the country of nationality or last habitual residence, in which life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group or political opinion, and where the person would have access to a full and fair procedure for determining an asylum claim, unless the Attorney General finds that it is in the public interest for asylum to be granted in the United States.
The bar is implemented by 8 C.F.R. § 1240.11(h), which governs the authority of immigration judges to apply agreements with countries other than Canada. The implementing regulation was issued as an interim rule at 84 Fed. Reg. 63994 (19 November 2019) and applies prospectively to persons who arrived at a port of entry or entered or attempted to enter between ports of entry on or after that date. The Secretary of Homeland Security ratified the rule at 90 Fed. Reg. 42309 (2 September 2025).
Once the government gives proper notice of its intent to remove a person to a third country under an agreement, the burden shifts to that person to show by a preponderance of the evidence that the agreement does not apply.
What the agreement with Ecuador covers and who is excluded
The agreement between the United States and Ecuador on the transfer of third-country nationals was effected by an exchange of diplomatic notes in July 2025 and published at 90 Fed. Reg. 51376 on 17 November 2025. As set out in that document, it does not apply to unaccompanied minors, to nationals of Ecuador, or to habitual residents of Ecuador.
The agreement contains no requirement that a person have transited through Ecuador. This distinguishes it from the long-standing agreement with Canada, and it is the feature with the widest practical reach: a person who has never been to Ecuador may nonetheless be found subject to the bar.
What an immigration judge may and may not decide
The two decisions of 10 July 2026 do not create the division of authority; they enforce the one already set out in the regulation and in earlier case law. The table below summarises it.
Within the immigration judge's authority | Outside the immigration judge's authority |
|---|---|
Whether the agreement does not apply to the person or does not preclude an asylum application | Whether the third country is willing to accept the person |
Whether the person qualifies for an exception specified in the published Federal Register document | Whether the person would have access to full and fair procedures in the third country |
Whether it is more likely than not that the person would be persecuted on account of a protected ground or tortured in the third country | Whether it is in the public interest for asylum to be pursued in the United States |
The three items in the left-hand column derive from 8 C.F.R. § 1240.11(h)(2) and (3). The three in the right-hand column derive from Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. at 295 n.4 and 298, and were reaffirmed in both July decisions.
How this line of law developed
The two July decisions sit at the end of a chain that runs from the 2019 implementing rule through the agreement with Ecuador and three earlier Board decisions. The rule and the agreements remain under challenge in parallel.
When | Development |
|---|---|
19 November 2019 | Interim rule implementing asylum cooperative agreements, 84 Fed. Reg. 63994, creating 8 C.F.R. § 1240.11(h) |
2 September 2025 | The Secretary of Homeland Security ratifies the interim rule, 90 Fed. Reg. 42309 |
2025 | Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. 291: the bar is decided before and separately from asylum eligibility, and the applicant bears the burden of showing it does not apply |
17 November 2025 | The agreement with Ecuador is published at 90 Fed. Reg. 51376, with its exceptions |
2026 | Matter of A-C-M-, 29 I&N Dec. 703: where the record shows no individualised risk in the third country, an evidentiary hearing is generally unnecessary |
2026 | Matter of T-A-G-, 29 I&N Dec. 715: potential eligibility for collateral relief is not a basis for denying a motion to pretermit |
10 July 2026 | Matter of E-A-R-M-, 29 I&N Dec. 746: an oral motion to pretermit provides the requisite notice of intent to remove to a third country |
10 July 2026 | Matter of N-E-R-S-, 29 I&N Dec. 753: no implementing instrument or complete set of operative terms is required to establish that a person is subject to an agreement |
Pending | U.T. v. Blanche, No. 1:20-cv-00116 (D.D.C.): challenge to the implementing rule and the agreements built on it |
Who is affected in practice
The decisions reach people in removal proceedings whose asylum applications the government seeks to pretermit on the basis of an agreement with a third country. The respondents in the two July cases were nationals of Venezuela and Colombia, and the agreement at issue was the one with Ecuador. Because that agreement carries no transit requirement and no nationality limitation beyond the exclusion of Ecuadorian nationals and habitual residents, its potential scope extends to applicants of many nationalities.
Neither decision addresses withholding of removal or protection under the Convention Against Torture as forms of relief in their own right. The bar at section 208(a)(2)(A) is a bar to applying for asylum. In both cases the applications the government moved to pretermit included withholding and Convention Against Torture claims, and both records were remanded for the immigration judge to determine whether the bar applies.
Both respondents appeared pro se, and in one case filed no response to the government's appeal. The published decisions therefore reflect argument from one side of the dispute.
What remains unresolved in litigation
The implementing rule and the agreements built on it are being challenged in U.T. v. Blanche, No. 1:20-cv-00116, in the United States District Court for the District of Columbia. The case originally challenged the 2019 agreements with Guatemala, El Salvador and Honduras, was held in abeyance while those agreements were suspended, and was revived after new agreements were signed in 2025. A motion for class certification and a motion for leave to file a second amended complaint were filed in late 2025 and briefed in early 2026.
Decisions of the Board bind immigration judges nationwide unless and until they are displaced by a federal court of appeals with contrary precedent, by the Attorney General, or by regulation. As of the date of this article no such displacement had occurred with respect to either July decision.
The distinction is worth stating plainly. These decisions resolve procedural questions about how immigration judges are to apply asylum cooperative agreements. They do not resolve whether the agreements themselves, or the rule implementing them, are lawful. That question is before the district court in U.T. v. Blanche.
Frequently asked questions
What did the Board of Immigration Appeals decide on 10 July 2026?
It issued two companion precedent decisions on the safe third country bar to asylum. Matter of E-A-R-M-, 29 I&N Dec. 746 (BIA 2026), held that an oral motion to pretermit gives sufficient notice of intent to remove an applicant to a third country. Matter of N-E-R-S-, 29 I&N Dec. 753 (BIA 2026), held that no implementing instrument need be produced to show that a person is subject to such an agreement.
Does this mean asylum applications will automatically be denied?
No. The bar at section 208(a)(2)(A) of the Immigration and Nationality Act makes a person ineligible to apply for asylum where an agreement permits removal to a third country, and the immigration judge still determines in each case whether the agreement applies, whether an exception published in the Federal Register applies, and whether the person has shown that it is more likely than not that he or she would be persecuted on account of a protected ground or tortured in that country.
What is an asylum cooperative agreement?
It is a bilateral or multilateral agreement under which a person who seeks asylum in the United States may instead be removed to another country to have the claim considered there. The agreements are published in the Federal Register together with their exceptions, and are implemented in removal proceedings through 8 C.F.R. § 1240.11(h).
Does the agreement with Ecuador require that a person has been in Ecuador?
No. As published at 90 Fed. Reg. 51376, the agreement contains no transit requirement. It does not apply to unaccompanied minors, to nationals of Ecuador, or to habitual residents of Ecuador.
What did the Board say about internal government documents?
The decision in Matter of N-E-R-S- concerns a bilateral implementing instrument contemplated by the agreement between the two governments, not internal departmental guidance. The Board held that because any such instrument is not part of the agreement itself and is not published in the Federal Register document setting out the agreement, its absence is not a permissible basis for concluding that the agreement does not apply.
Why did the Board hear these appeals before the cases were over?
Both were interlocutory appeals, which the Board does not ordinarily accept. It stated that it did so to correct the recurring misapplication of 8 C.F.R. § 1240.11(h) by immigration judges.
Official sources
Source | What it contains |
|---|---|
Full text of Interim Decision #4216 on notice of intent to remove | |
Full text of Interim Decision #4217 on the implementing instrument | |
The framework decision on applying the safe third country bar | |
When an evidentiary hearing on the bar is unnecessary | |
Text of the agreement with Ecuador and its exceptions | |
Complete list of published Board decisions with headnotes | |
Practice manual, filing information and the Board's role |
This material is informational and reflects the position as of 26 July 2026. It is not legal advice. Precedent decisions of the Board of Immigration Appeals and agreements published in the Federal Register are subject to change, and pending litigation may affect their application. Before any irreversible step in removal proceedings, individual circumstances are assessed with a licensed attorney.