E-A-R-M-

page
746
Cite as 29 I&N Dec. 746 (BIA 2026) 	Interim Decision #4216
Matter of E-A-R-M-, et al., Respondents
Decided July 10, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The Department of Homeland Security’s oral motion to pretermit the respondents’
applications for asylum and related protection was sufficient to provide the requisite notice
of its intent to remove the respondents to a third country pursuant to an asylum cooperative
agreement.
FOR THE RESPONDENTS: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Luis Zupo, Counsel
BEFORE: 	Board Panel: 	RADICS, Deputy Appellate Immigration Judge, OWEN and
GALLOW, Appellate Immigration Judges.
OWEN, Appellate Immigration Judge:
The 	Department 	of 	Homeland 	Security 	(“DHS”) 	has 	filed 	an
interlocutory appeal from the Immigration Judge’s March 24, 2026, decision
denying its motion to pretermit the respondents’ applications for asylum and
withholding of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158(b)(1)(A),
1231(b)(3)(A) (2024), and protection under the regulations implementing the
Convention Against Torture (“CAT”).1 	The respondents have not filed a
response to DHS’ appeal. The appeal will be sustained, and the record will
be remanded.
In its motion, DHS sought pretermission of the respondents’ applications
because the respondents are subject to the safe third country bar to asylum
under section 208(a)(2)(A) of the INA, 8 U.S.C. § 1158(a)(2)(A) (2024), as
1 	The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States on Nov. 20, 1994). 	8 C.F.R. §§ 1208.16(c), 1208.17 (2026);
8 C.F.R. § 1208.18(a) (2020).

Cite as 29 I&N Dec. 746 (BIA 2026) 	Interim Decision #4216
page
747
implemented by 8 C.F.R. § 1240.11(h) (2026).2 We recently discussed this
bar to asylum eligibility and provided guidance on the proper application of
the regulation in Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. 291 (BIA
2025). 	See also Matter of A-C-M-, 29 I&N Dec. 703 (BIA 2026) (holding
that determining whether the safe third country bar applies to an ACA
country of removal generally will not require an evidentiary hearing).
Although the Board does not ordinarily entertain interlocutory appeals, we
deem it appropriate to do so here to correct the recurring misapplication of
8 C.F.R. § 1240.11(h) and Matter of C-I-G-M- & L-V-S-G- by Immigration
Judges. See Matter of M-D-, 24 I&N Dec. 138, 139 (BIA 2007) (observing
that it may be appropriate to adjudicate an interlocutory appeal “to correct
recurring problems in the handling of cases by Immigration Judges”).
I. FACTUAL AND PROCEDURAL HISTORY
The adult female respondent and the minor respondents are natives and
citizens of Venezuela. The adult male respondent is a native and citizen of
Colombia. 	The respondents illegally entered the United States without
inspection on April 3, 2024. 	DHS served each respondent with a notice to
appear and commenced removal proceedings against them by filing the
notices to appear with the Immigration Court. 	The adult respondents filed
applications for asylum, withholding of removal, and CAT protection before
the Immigration Judge on September 13, 2024. 	DHS orally moved to
pretermit the respondents’ applications at a hearing on January 28, 2026,
arguing that the respondents are ineligible to apply for asylum and related
protection because they may be removed to Ecuador for consideration of
those claims pursuant to an asylum cooperative agreement (“ACA”) between
the United States and Ecuador.3
The respondents filed an opposition to DHS’ motion in which they argued
that ACAs are impermissibly retroactive and that Ecuador is not a safe third
country. On March 6, 2026, the Immigration Judge issued a scheduling order
requiring DHS to (1) affirm whether it intended to remove the respondents
to Ecuador for the adjudication of their asylum and protection claims; (2) if
so, specify the statutory basis under section 241(b)(2) of the INA, 8 U.S.C.
§ 1231(b)(2), for DHS’s request that the Immigration Judge designate
2 	The respondents are a family unit. The lead respondent and adult male respondent filed
applications for asylum and related relief. The minor respondents are listed as derivative
asylum applicants on those applications but did not file their own applications for relief.
3 	See Agreement Between the Government of the United States of America and the
Government of the Republic of Ecuador Relating to the Transfer of Third-Country
Nationals to Ecuador, 90 Fed. Reg. 51376 (Nov. 17, 2025).

Cite as 29 I&N Dec. 746 (BIA 2026) 	Interim Decision #4216
page
748
Ecuador as a country 	of removal; and (3) 	if DHS relied on section
241(b)(2)(E)(vii) of the INA, 8 U.S.C. § 1231(b)(2)(E)(vii) (2024), state
whether DHS takes the position that the Ecuadorian government will accept
the respondents and the basis for this position if asserted. 	DHS did not
respond to the scheduling order.
The Immigration Judge denied DHS’ motion to pretermit, concluding that
because DHS has not provided notice of its intent to remove the respondents
to Ecuador for the adjudication of their asylum and protection claims, there
is no disputed issue for the Immigration Judge to resolve and therefore no
need for the Immigration Judge to determine the applicability of the safe third
country bar. 	In the alternative, the Immigration Judge found that he could
not determine whether the ACA with Ecuador applies to the respondents and
it would be improper for him to designate Ecuador as a country of removal.
On 	appeal, 	DHS 	argues 	that 	the 	Immigration 	Judge 	exceeded 	his
regulatory 	authority 	and 	did 	not 	follow 	the 	correct 	procedures 	for
adjudicating motions to pretermit based on an ACA. 	Whether the facts
establish that the safe third country bar to asylum applies is a legal question
we review de novo. 	See 8 C.F.R. § 1003.1(d)(3)(ii) (2026); Matter of
C-I-G-M- & L-V-S-G-, 29 I&N Dec. at 293.
II. DISCUSSION
This case involves the safe third country bar to asylum under section
208(a)(2)(A) of the INA, 8 U.S.C. § 1158(a)(2)(A), and the authority of
Immigration Judges under 8 C.F.R. § 1240.11(h) (2026) to apply the bilateral
ACA with Ecuador. 	See Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. at
292–99 (explaining the legal background of the ACA with Honduras and the
relevant procedures in removal proceedings).
Under the safe third country bar to asylum, an alien is ineligible to apply
for asylum in the United States:
if the Attorney General determines that the alien may be removed, pursuant to a
bilateral or multilateral agreement, to a country (other than the country of the alien’s
nationality or, in the case of an alien having no nationality, the country of the alien’s
last habitual residence) in which the alien’s 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 alien would have access to a full and fair procedure
for determining a claim to asylum or equivalent temporary protection, unless the
Attorney General finds that it is in the public interest for the alien to receive asylum
in the United States.

Cite as 29 I&N Dec. 746 (BIA 2026) 	Interim Decision #4216
page
749
INA § 208(a)(2)(A), 8 U.S.C. § 1158(a)(2)(A). This bar is implemented in
relevant part by 8 C.F.R. § 1240.11(h), which governs the authority of
Immigration Judges to apply ACAs between the United States and countries
other than Canada. 	See Implementing Bilateral and Multilateral Asylum
Cooperative 	Agreements 	Under 	the 	Immigration 	and 	Nationality 	Act,
84 Fed. Reg. 63994, 64010 (Nov. 19, 2019) (interim rule) (“ACA Rule”).4
The regulation applies “only prospectively to aliens who arrive at a U.S. port
of entry, or enter or attempt to enter the United States between ports of entry,
on or after” November 19, 2019, and “provide[s] a general mechanism for
implementation 	of 	all 	existing 	and 	future 	ACAs 	not 	previously
implemented.” Id. at 63995–96.
The United States entered into an ACA with Ecuador on November 17,
2025. See 90 Fed. Reg. 51376. The ACA does not apply to unaccompanied
minors, Ecuadorian nationals, or habitual residents of Ecuador. Id. at 51378–
79.
A. Notice of Intent to Remove to a Safe Third Country
When DHS, in a motion to pretermit, provides an alien with proper notice
of its intent to remove him or her to a safe third country for consideration of
an asylum and protection claim under the ACA with that country, the burden
shifts to the alien to show by a preponderance of the evidence that the ACA
does not apply. Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. at 295. The
relevant statutory and regulatory provisions ensure that the alien has a
reasonable opportunity to present evidence and respond to any evidence
presented by DHS. Id.
In 	evaluating 	whether 	the 	respondents 	have 	met 	this 	burden, 	the
Immigration Judge’s authority is limited by regulation. 	The Immigration
Judge may determine: 	(i) whether the agreement does not apply to the
respondents or preclude them from applying for asylum; (ii) whether the
respondents qualify for an exception specified in the published Federal
Register document setting out the ACA and its exceptions; and (iii) whether
the respondents have demonstrated that it is more likely than not that they
will be persecuted on account of a protected ground or tortured in Ecuador.
8 C.F.R. § 1240.11(h)(2)–(3). 	However, the Immigration Judge may not
require DHS to demonstrate that Ecuador is willing to accept the respondents
and, 	further, 	does 	not 	have 	the 	authority 	to 	determine 	whether 	the
respondents will have access to full and fair procedures in Ecuador or
4 	The Secretary of Homeland Security recently ratified the ACA Rule. See Ratification
of Department Action, 90 Fed. Reg. 42309 (Sept. 2, 2025).

Cite as 29 I&N Dec. 746 (BIA 2026) 	Interim Decision #4216
page
750
whether it would be in the public interest to allow the respondents to pursue
the asylum claim in the United States. 	Matter of C-I-G-M- & L-V-S-G-,
29 I&N Dec. at 295 n.4, 298.
The Immigration Judge erred in finding that DHS did not provide the
respondents with notice of its intent to remove them to Ecuador for the
adjudication of their asylum and protection claims. “DHS must provide oral
or written notice that it intends to remove the respondent to the relevant third
country for consideration of his or her asylum claim.” 	Matter of C-I-G-M-
& L-V-S-G-, 29 I&N Dec. at 295. 	See also Implementing Bilateral and
Multilateral Asylum Cooperative Agreements Under the Immigration and
Nationality Act, 84 Fed Reg. at 64000 (“[T]his interim rule provides that an
alien who will potentially be subject to an ACA will be advised that he or
she may be removed to a third country pursuant to a bilateral or multilateral
agreement.”). 	Here, DHS provided such notice when it orally moved to
pretermit the respondents’ asylum applications based on the ACA with
Ecuador and was not required to file a written affirmation of its intent in
response to the Immigration Judge’s scheduling order. 	Contrary to the
Immigration 	Judge’s 	conclusion, 	DHS’ 	oral 	motion 	to 	pretermit 	the
respondents’ applications for asylum and related protection was sufficient to
provide the requisite notice of its intent to remove the respondents to Ecuador
pursuant to an ACA.
B. Alternative Findings
The Immigration Judge alternatively determined that the ACA does not
apply to the respondents because DHS did not indicate that it intends to
transfer them to Ecuador and there is no implementation plan between the
United States and Ecuador. 	This exceeds the scope of the Immigration
Judge’s authority. 	As we stated in Matter of C-I-G-M- & L-V-S-G-,
Immigration Judges may not require DHS to demonstrate that an ACA
country of removal is willing to accept a respondent who is subject to the
terms of an ACA. 29 I&N Dec. at 295 n.4. The Immigration Judge also does
not have the authority to determine whether the respondent will have access
to full and fair procedures in the third country. Id. at 298.
The Immigration Judge’s reliance on the lack of an implementation plan
is misplaced, as any subsequent implementation plan is not a part of the ACA
itself and is not included in the Federal Register document setting forth the
ACA and its exceptions. See 90 Fed. Reg. 51376–86 (ACA with Ecuador);
see also 84 Fed. Reg. at 63995 (“[T]he agreements will be published in a
document in the Federal Register.”); 84 Fed. Reg. at 63997 (“ACAs entered
pursuant to section 208(a)(2)(A) will be published in the Federal Register.”);

Cite as 29 I&N Dec. 746 (BIA 2026) 	Interim Decision #4216
page
751
8 C.F.R. § 1240.11(h)(3) (“The exceptions for agreements with countries
other than Canada are further explained by the applicable published Federal
Register document setting out each Agreement and its exceptions.”). 	Nor
does the statute require anything beyond an agreement. INA § 208(a)(2)(A),
8 U.S.C. § 1158(a)(2)(A). 	The Immigration Judge acknowledged that any
such implementation plan would be published separately by the Department
of State. It follows that such a plan would be ancillary to the ACA published
in the Federal Register and therefore not a permissible source of exception to
the applicability of the ACA. See 8 C.F.R. § 1240.11(h)(2)(ii).
Finally, the Immigration Judge erred in declining to designate Ecuador as
a country of removal once DHS indicated its intent to remove the respondents
there based on the ACA. See Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec.
at 297 (“The Immigration Judge should order the respondent removed to the
relevant third country.”). Under 8 C.F.R. § 1241.15 (2026), neither the Board
nor the Immigration Judge has jurisdiction to review any determination by
DHS regarding countries to which an alien may be removed. 	See also
8 C.F.R. § 241.15 (2026); Matter of A-S-M-, 28 I&N Dec. 282, 285 (BIA
2021). 	The Immigration Judge erred in reading our holding in Matter of
A-S-M- to apply only when DHS designates a country of removal after the
conclusion of removal proceedings. See Matter of A-S-M-, 28 I&N Dec. at
285 (holding that an alien can apply for withholding of removal from a third
country designated by DHS in withholding-only proceedings following
reinstatement of a prior removal order, and the Immigration Judge lacks
authority to review DHS’s third-country designation). 	The Immigration
Judge cites no persuasive authority to support such a narrow reading of our
holding and the underlying regulation.
III. CONCLUSION
We 	conclude 	that 	the 	Immigration 	Judge 	exceeded 	his 	regulatory
authority and did not follow the correct procedures for deciding motions to
pretermit based on an ACA. 	We will therefore sustain DHS’ appeal and
remand the record for the Immigration Judge to expeditiously determine
whether the safe third country bar applies in this case. 	The Immigration
Judge may do so either by written order or during a promptly scheduled
master calendar hearing after considering the evidence and arguments
presented by the parties.
Accordingly, the following orders will be entered.
ORDER: DHS’ interlocutory appeal is sustained.

Cite as 29 I&N Dec. 746 (BIA 2026) 	Interim Decision #4216
page
752
FURTHER ORDER: The Immigration Judge’s March 24, 2026, order
denying DHS’ motion to pretermit is vacated.
FURTHER ORDER: 	The record is remanded to the Immigration
Court for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.