Matter of G-R-B-: The Judge Can End an Asylum Case on the Papers, Unasked

A year ago the Board said an immigration judge could decide an asylum case on the written application alone, without hearing testimony, if the application did not state a claim. In that case the government had asked for it. Yesterday the Board said the judge does not need to be asked.

The line of cases

This is the third step in a sequence that began in September 2025. In Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), the Board held: “If the factual allegations underlying a claim for asylum, withholding of removal, or protection under the Convention Against Torture, viewed in the light most favorable to the respondent, do not establish prima facie eligibility for relief or protection, an Immigration Judge may pretermit the applications without a full evidentiary hearing on the merits of the claim.” The regulation it rests on, 8 C.F.R. § 1240.11(c)(3), requires a hearing to resolve factual issues in dispute; where the facts as alleged do not add up to a claim even if true, the Board reasoned, there is nothing to resolve. In H-A-A-V-, DHS had made an oral motion to pretermit.

In June, Matter of T-A-G-, 29 I&N Dec. 715 (BIA 2026), held that a pending family petition is no reason to deny a DHS motion to pretermit.

G-R-B- closes the remaining gap. The respondent argued the judge could not pretermit on his own initiative. The Board disagreed: the applicant bears the burden of proof under INA § 240(c)(4); an agency need not hold a hearing where there is no genuine issue of fact; and immigration judges “have broad discretion in conducting immigration proceedings.” The respondent, the Board wrote, “has not identified any legal authority that supports the proposition that an Immigration Judge can make such a prima facie determination only on motion by DHS.”

The decision sits on top of EOIR’s policy. Policy Memorandum 25-28, Pretermission of Legally Insufficient Applications for Asylum (April 11, 2025), told adjudicators they “should take” action “to immediately resolve cases on their dockets that do not have viable legal paths for relief,” and that they “may pretermit legally deficient asylum applications without a hearing.”

The case itself

The respondent, a Mexican national, feared harm from private actors on account of race and membership in a particular social group. The immigration judge pretermitted asylum, withholding and Convention Against Torture protection on May 5, 2026, finding no prima facie claim: no past harm rising to persecution, no specific evidence of a well-founded fear on account of race, no past torture or specific evidence of likely future torture.

On appeal the respondent did not contest those findings. He argued instead that the judge should have developed the record further, and should not have acted without a DHS motion. The Board treated the substantive issues — whether the social group was cognizable, whether the application was timely — as waived, because they were not meaningfully argued. It rejected the record-development argument on the ground that the respondent “has not identified any evidence or aspect of his application that was overlooked.” And it noted that he had been given the opportunity to submit evidence and set out the basis for his claims under INA § 240(b)(4)(B). A footnote rejects an argument that the judge lacked impartiality.

What it means in practice

The written application is now the case at the threshold. The I-589, the declaration and the supporting evidence must state facts which, taken as true and read generously, meet every element: harm rising to persecution, a protected ground, a nexus between them, a government unable or unwilling to protect, and — for the Convention Against Torture — a likelihood of torture with official involvement or acquiescence. A gap in any of these can now end the case before anyone testifies, and the judge can identify the gap alone.

Testimony is not a safety net. An applicant who expects to explain the claim at the hearing, or to fill in what the paper leaves out, may not get the hearing. G-R-B- is also a lesson about appeals: a brief that argues only that the judge should have done more, without engaging what the judge found, waives the findings.

Unrepresented applicants are the most exposed. H-A-A-V- requires that a pro se respondent be placed under oath to confirm the application is complete before it is pretermitted, but that is a formality, not a hearing.

Where the Eleventh Circuit stands

G-R-B- arose in the Fifth Circuit, and the Board said cases from other circuits were not binding on it. Cases from Florida go to the Eleventh Circuit, and we found no Eleventh Circuit decision reviewing an H-A-A-V--style pretermission. What exists is the general rule from Alhuay v. U.S. Attorney General, 661 F.3d 534 (11th Cir. 2011): due process in removal proceedings “is satisfied only by a full and fair hearing,” and a petitioner must show substantial prejudice — that the outcome would have been different. The out-of-circuit authorities respondents typically cite are Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (en banc), which called oral testimony “an essential aspect of the asylum adjudication process,” and Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021), on the judge’s duty to develop the record. Whether the Eleventh Circuit will follow the Board is an open question.

One more thing in the decision

The order closes with a notice, now standard in Board decisions, that a person under a final order who willfully fails to depart is subject to a civil penalty of up to $998 per day under INA § 274D, and that re-entry after removal is a federal crime. The daily figure is the current inflation-adjusted amount under 8 C.F.R. § 280.53(b)(14).

For anyone with an asylum case in immigration court, the practical question this decision raises is whether the application on file, read on its own, states a claim. That is a question to put to counsel before the next hearing date, not after. Our earlier article on what to expect at an immigration court hearing describes the process the decision now allows a judge to shorten.

This article is general legal information about a recent precedent decision, not legal advice, and does not create an attorney-client relationship. Whether an application states a prima facie claim, and how this decision applies in a given circuit, depends on the specific record and governing law. Consult a qualified immigration attorney about your own case. This website is attorney advertising.