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Cite as 29 I&N Dec. 753 (BIA 2026) 	Interim Decision #4217
Matter of N-E-R-S-, et al., Respondents
Decided July 10, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
DHS is not required to provide an implementing instrument showing the operating
procedures for an asylum cooperative agreement (“ACA”) or a complete set of operative
terms and criteria in order to establish that an alien is subject to the terms of the ACA in
the context of the safe third country bar to asylum eligibility.
FOR THE RESPONDENTS: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Jean Chu, Assistant Chief
Counsel
BEFORE: 	Board Panel: 	OWEN, GALLOW, and HANSELL, Appellate Immigration
Judges.
GALLOW, Appellate Immigration Judge:
The 	Department 	of 	Homeland 	Security 	(“DHS”) 	has 	filed 	an
interlocutory 	appeal 	from 	the 	Immigration 	Judge’s 	January 	27, 	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
Although we do not ordinarily entertain interlocutory appeals, we deem it
appropriate to do so here “to correct recurring problems in the handling of
cases by Immigration Judges.” Matter of M-D-, 24 I&N Dec. 138, 139 (BIA
2007). The interlocutory appeal will be sustained, the Immigration Judge’s
decision will be vacated, and the record will be remanded.
I. FACTUAL AND PROCEDURAL HISTORY
The respondents, natives and citizens of Venezuela, filed applications for
asylum and related relief from removal with the Immigration Court on
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 Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c), 1208.17 (2026); 8 C.F.R.
§ 1208.18(a) (2020).

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November 5, 2025. 	On January 16, 2026, DHS moved to pretermit the
applications, arguing that the respondents are barred from applying for such
forms of relief and protection because they are subject to the safe third
country bar to asylum under the asylum cooperative agreement (“ACA”)
with Ecuador. 	See INA § 208(a)(2)(A), 8 U.S.C. § 1158(a)(2)(A) (2024);
8 C.F.R. 1240.11(h) (2026); 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).
On January 27, 2026, the Immigration Judge denied the motion to
pretermit, concluding that DHS failed to show that the respondents are
subject to the ACA with Ecuador. Specifically, the Immigration Judge found
that DHS did not provide the required implementing “instrument” showing
the operating procedures for the ACA or the “complete set of operative terms
and criteria” to show that the respondents are subject to the terms of the
agreement with Ecuador. DHS challenges the Immigration Judge’s holding
on appeal.
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) to apply the bilateral ACA
with Ecuador. 	In Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. 291 (BIA
2025), 	we 	provided 	guidance 	to 	Immigration 	Judges 	on 	the 	proper
application of the regulation in cases involving an ACA. 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). In this case and in a decision published
today as a companion to this case, Matter of E-A-R-M-, 29 I&N 746 (BIA
2026), we further expand our ACA jurisprudence to explain the limits of an
Immigration Judge’s regulatory authority under 8 C.F.R. § 1240.11(h).
Under the circumstances presented, we conclude that the Immigration Judge
exceeded her regulatory authority and did not follow the correct procedures
for deciding motions to pretermit based on an ACA. 	See C-I-G-M- &
L-V-S-G-, 29 I&N Dec. at 295–97 (describing the application of ACAs and
the governing regulation in removal proceedings).
After DHS 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 the third country, the burden shifts to
the alien to show by a preponderance of the evidence that the ACA does not

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apply. See Matter of E-A-R-M-, 29 I&N Dec. at 48–50 (holding that a motion
to pretermit is sufficient to provide the requisite notice of DHS’ intent to
remove the alien to a safe third country); Matter of C-I-G-M- & L-V-S-G-,
29 I&N Dec. at 295 (acknowledging the alien’s burden to show that the safe
third country bar does not apply). 	The regulations limit the Immigration
Judge’s authority in evaluating whether the alien has met this burden. 	As
relevant here, the Immigration Judge may determine whether the agreement
does not apply to the alien or does not preclude the alien from applying for
asylum in the United States. 8 C.F.R. § 1240.11(h)(2)(i).
The Immigration Judge denied DHS’ motion, finding that because it did
not include a subsequent implementation plan for the agreement between
Ecuador and the United States, DHS did not show that the respondents are
subject to the ACA with Ecuador. The ACA with Ecuador provides:
The Parties shall develop operating procedures to assist with the implementation of
this Agreement through a subsequent instrument, including, among others, clear
criteria to determine eligibility for transfer to the Republic of Ecuador, as well as any
necessary bilateral assistance to implement this Agreement.
90 Fed. Reg. at 51379, 51384. 	However, any such subsequent instrument
establishing procedures for the implementation of the ACA is not a part of
the ACA itself and not included in the Federal Register document setting
forth the ACA with Ecuador and its exceptions. 	It is therefore not a
permissible basis for determining the ACA does not apply to the respondents.
See 8 C.F.R. § 1240.11(h)(2)(i). 	Thus, the Immigration Judge erred in
denying DHS’ motion to pretermit solely on this basis. 	See Matter of
E-A-R-M-, 	29 	I&N 	Dec. at 	750–51 (recognizing 	that 	any 	subsequent
implementation plan is not a part of the ACA itself and not a permissible
source of exception to the applicability of the ACA); Matter of C-I-G-M- &
L-V-S-G-, 29 I&N Dec. at 295 n.4, 298 (noting that an Immigration Judge
may not require DHS to demonstrate that the third country is willing to accept
the alien and may not determine whether the alien will have access to full
and fair procedures in the third country).
III. CONCLUSION
DHS is not required to provide an implementing “instrument” showing
the operating procedures for the ACA or a “complete set of operative terms
and criteria” in order to establish that the respondents are subject to the terms
of the ACA with Ecuador in the context of the safe third country bar to
asylum eligibility. We will therefore sustain DHS’ interlocutory appeal and
remand the record for the Immigration Judge to expeditiously determine
whether the safe third country bar applies in this case. 	The Immigration

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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.
FURTHER ORDER: 	The Immigration Judge’s January 27, 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.