DHS Orders ICE Attorneys to Seek Early Dismissal of Weak Asylum Claims

The Department of Homeland Security is telling its own lawyers to stop wasting time on asylum claims that don't hold up on paper.

New guidance issued this week directs attorneys in U.S. Immigration and Customs Enforcement's Office of the Principal Legal Advisor to file what's called a motion to pretermit whenever they believe an asylum application is legally insufficient on its face, according to internal guidance obtained by Fox News Digital. That motion asks an immigration judge to deny the case before it ever reaches a full merits hearing, the stage where applicants present testimony and evidence.

DHS general counsel James Percival made the reasoning plain in a Sept. 3 post on X. "If an asylum claim is facially deficient, you don't need an evidentiary hearing," he wrote. "We are done wasting time and government resources indulging sham asylum claims."

A DHS spokesperson told The Epoch Times that a pending asylum application "never intended to be used as a de facto amnesty program or a catch-all, get-out-of-deportation-free card." The spokesperson added that "all illegal aliens receive due process" and that the department is "applying the law as written by Congress."

What Actually Changes

This isn't ICE granting itself the power to kill a case. Immigration judges still make the final call on every pretermit motion, according to Fox News' reporting. What changes is the posture: government lawyers are now instructed to proactively push for early dismissal rather than let weak claims ride through the system to a full hearing.

Immigration attorney Ezequiel Hernández, in comments to Univision reported by CiberCuba, explained the practical effect bluntly: "the judge has the authority to dismiss the case before the hearing takes place, and what this means is that you do not attend your hearing, there is no hearing at all, only a ruling."

To win asylum, an applicant has to show past persecution or a well-founded fear of future persecution tied to one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion, according to CiberCuba's review of the standard. Economic hardship or general regional instability doesn't meet that bar. CiberCuba reported the policy is drawing particular attention from Cuban, Venezuelan, and Central American applicants with pending defensive asylum cases, since many of those filings cite conditions that fall outside the five protected categories.

The Buildup

This directive doesn't stand alone. In April 2025, the Executive Office for Immigration Review authorized judges to dismiss deficient applications without a hearing, CiberCuba reported. The Board of Immigration Appeals later reinforced that with a precedential ruling in Matter of H-A-A-V-. In July, USCIS rolled out an interim rule letting the agency refer asylum applications directly to immigration court without an interview first, a move Percival said at the time was meant to cut the backlog and fulfill President Trump's immigration mandate. Fox News also noted the Supreme Court has handed the administration wins affirming DHS's authority to limit asylum processing and to end Temporary Protected Status for Haitian and Syrian migrants, though a liberal justice reportedly warned the ruling could complicate things at the border.

DHS has also been going after the lawyers filing the claims. ICE has pursued civil penalties against attorneys accused of facilitating fraudulent applications, including a nearly $500,000 fine sought against a New York immigration attorney, according to Fox News.

Separately, AP News reported the administration is preparing what it described as the largest mass visa revocation in U.S. history, targeting up to 200,000 foreigners. AP's reporting frames that as a distinct, broader action rather than a direct extension of the pretermit-motion guidance, though both fit the same enforcement push.

The Central Tension

The administration's argument is straightforward. A backlogged asylum system where meritless claims sit for years functions as an unofficial amnesty, and Congress never wrote the law that way. Percival made that case directly in July, saying "one of the greatest barriers to effective immigration enforcement is intentional delay by illegal aliens and the open borders attorneys who represent them."

The fair counterargument, laid out by Hernández, is that a paper review before any hearing is a much thinner test than a full evidentiary hearing. Asylum cases often turn on facts that don't show up cleanly in an initial filing, particularly when applicants are unrepresented, don't speak English, or are fleeing conditions that are hard to document from abroad. If a judge pretermits based on a facially thin application, the applicant never gets the chance to fill in that record with testimony.

DHS's position is that judges, not ICE, still decide every motion, and that due process is preserved because a judge reviews the filing before any dismissal. Whether that paper-only review functions as real due process for applicants who can't easily articulate a persecution claim in writing is the open question immigration courts will now have to sort through case by case.