Practitioner Advisory: Challenging EOIR’s 2025 Pretermission Policy Memo in Immigration Court

Introduction

On April 11, 2025, EOIR’s Acting Director, Sirce E. Owen, issued Policy Memorandum 25-28 (hereafter, the “Pretermission Memo”), directing Immigration Judges (IJs) to pretermit legally insufficient asylum applications without holding evidentiary hearings.
(See EOIR, Policy Memorandum 25-28, Pretermission of Legally Insufficient Applications for Asylum (Apr. 11, 2025).)

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While EOIR claims that pretermission promotes docket efficiency, the memo significantly undermines due process rights of respondents by encouraging summary dismissal without testimony or adequate notice. This advisory identifies key flaws in the EOIR memo and provides practitioners strategies to effectively challenge it in court.

Flaw #1: Misinterpretation of Matter of Fefe

The Memo’s Position: EOIR claims that the controlling precedent, Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), relied on outdated regulations, implying that its requirement for oral testimony is no longer binding.

Why EOIR is Incorrect:

• Fefe explicitly mandates oral testimony under oath in asylum cases, emphasizing that testimony is essential to evaluating credibility and factual discrepancies: “An applicant for asylum cannot meet his burden of proof unless he testifies under oath regarding his application; an immigration judge should not adjudicate an asylum application if no oral testimony is offered.” (Id. at 118.)
• The Pretermission Memo overlooks the enduring principle of Fefe—the necessity of oral testimony for credibility determinations—focusing instead on regulatory changes that do not alter the underlying reasoning.

Practitioner Response:

• Argue explicitly that the regulatory restructuring cited by EOIR did not repeal the fundamental requirement of oral testimony. Emphasize the logic behind credibility assessments, which remains intact.

Flaw #2: Misapplication of Matter of E-F-H-L-

Memo’s Position: EOIR states that the BIA decision in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), which reinforced the need for full hearings, no longer has precedential value because it was vacated.

Why EOIR is Incorrect:

• EOIR’s memo does not fully explain the reason for vacatur: E-F-H-L- was vacated by the Attorney General solely on unrelated substantive grounds (the definition of particular social groups), not procedural fairness. (See Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)).
• Therefore, its discussion of procedural safeguards remains persuasive and relevant authority for asylum hearing standards.

Practitioner Response:

• Clearly state to the Immigration Judge that although E-F-H-L- was vacated, it was specifically on unrelated grounds. Its reasoning about procedural protections remains compelling and authoritative.

Flaw #3: Violation of Current Regulations

Practitioner Response:

• Argue clearly that credibility itself is inherently a factual dispute, thus always requiring a hearing. Point out EOIR’s misinterpretation, particularly its overly restrictive view of “factual dispute.”

Flaw #4: Violation of Due Process Rights

Memo’s Position: EOIR suggests that pretermission without evidentiary hearings is permissible absent factual disputes.

Why EOIR is Incorrect:

• The Fifth Amendment Due Process Clause guarantees respondents fair hearings. Courts consistently hold respondents have a right to a full and fair opportunity to testify, present evidence, and challenge government evidence (See, e.g., Jacinto v. INS, 208 F.3d 725, 727–28 (9th Cir. 2000); Oshodi v. Holder, 729 F.3d 883, 889–90 (9th Cir. 2013); Podio v. INS, 153 F.3d 506, 510–11 (7th Cir. 1998)).
• EOIR’s pretermission policy risks erroneously depriving legitimate asylum seekers of their rights by denying critical procedural protections (See Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

Practitioner Response:

• Stress respondents’ constitutional right to present evidence and testimony explicitly protected under INA § 240(b)(4)(B) (8 U.S.C. § 1229a(b)(4)(B)).
• Highlight the risk of erroneous deprivation of relief inherent in summary denials.

Flaw #5: Improper Evidentiary Hearings at Master Calendar Hearings

EOIR’s Implication: The memo indirectly suggests Immigration Judges could resolve claims substantively without prior notice at preliminary (Master Calendar) hearings.

Why EOIR is Incorrect:

• Regulations (8 C.F.R. § 1240.10) clearly differentiate between Master Calendar Hearings (procedural) and Individual Hearings (substantive/evidentiary).
• Immigration Judges cannot lawfully conduct surprise evidentiary hearings without proper notice and preparation opportunities, violating clear statutory and regulatory protections.

Practitioner Response:

• Immediately object if an Immigration Judge attempts substantive questioning without prior notice at a Master Calendar hearing. Cite regulatory protections and due process violations explicitly.

Conclusion and Strategic Recommendations

Practitioners should:

• Explicitly object to pretermission citing Matter of Fefe’s enduring logic and regulatory protections of 8 C.F.R. § 1240.11(c)(3)(iii).
• Clarify and defend reliance on Matter of E-F-H-L- despite its vacatur on unrelated grounds.
• Cite due process and INA statutory rights explicitly to assert respondents’ entitlement to evidentiary hearings.
• Object vigorously if evidentiary hearings are unexpectedly introduced at Master Calendar Hearings.

By strategically utilizing these arguments, practitioners can effectively counter the problematic EOIR memo and robustly defend respondents’ rights to fair asylum hearings.