Immigration Court Enforcement (ICE) attorneys are filing motions to dismiss asylum cases before hearings at an unprecedented rate under a Department of Homeland Security directive. The DHS policy instructs ICE attorneys to file "motions to pretermit" asylum cases they identify as "legally deficient" before an immigration judge conducts a full hearing.
This strategy has transformed asylum case handling: the number of these dismissal motions grew 283-fold in one year, from 60 in January 2025 to 17,000 in January 2026. The volume and speed of these filings raise questions for asylum seekers about how their cases are decided. Understanding what a pretermit motion is, how often they succeed, and what your options are can help you prepare if your case is affected.
Table of Contents
- What Is a Pretermit Motion and How Rapidly Are They Growing?
- What Legal Argument Is ICE Using to Dismiss Cases?
- How Often Are These Motions Granted by Judges?
- What Does This Mean for Your Case If You Are Seeking Asylum?
- Where Can You Find Help Responding to These Motions?
- Frequently Asked Questions
What Is a Pretermit Motion and How Rapidly Are They Growing?
A pretermit motion asks an immigration judge to dismiss a case without holding a full hearing—effectively canceling the asylum application before it is adjudicated on the merits. Instead of hearing evidence and argument about whether you qualify for asylum, the judge is asked to dismiss on the grounds that your case is defective in some way.
The speed at which ICE has deployed this tactic is striking: between May 20 and July 28, 2025, ICE filed 6,210 motions to dismiss in immigration courts, with 86% decided the same day despite procedures that allow a 10-day response window. By the numbers, this shift has reshaped who faces these motions.
By January 2026, one in five asylum applicants faced an ICE motion to dismiss before their hearing; by mid-2026, this ratio had risen to one in three at merits hearings. The motions are not isolated to a single court: they have been filed across courts in Atlanta, New York, Miami, Los Angeles, San Francisco, and Texas.
What Legal Argument Is ICE Using to Dismiss Cases?
ICE attorneys rely primarily on a "safe third country" defense. Under this strategy, ICE argues that asylum seekers can be deported to Guatemala, Honduras, Ecuador, or Uganda rather than having their asylum claims adjudicated. This argument shifts the burden: instead of proving you meet asylum law's definition—having a well-founded fear of persecution based on your political opinion, religion, nationality, social group, or race—ICE asks the judge to dismiss because another country is supposedly safe for you.
The safe third country approach rests on an assumption that these countries are willing to accept deportees and can protect them. This theory has not been tested for each individual, and the premise itself is contested by immigration advocates and human rights organizations. For readers facing this motion, the practical question is whether the named country is genuinely safe for you—something your attorney will need to challenge with evidence specific to your circumstances.
How Often Are These Motions Granted by Judges?
Immigration judges have granted 80% of ICE's oral motions to dismiss, despite procedures that require written motions with 10-day response windows. This high grant rate is significant because it shows that most judges are accepting the safe third country argument or other defects ICE identifies. The fact that 86% of these motions were decided the same day they were filed suggests little time for asylum seekers or their attorneys to gather and present a rebuttal.
The procedural speed raises a concern: standard immigration court practice allows 10 days to respond, but oral motions decided immediately bypass that timeline. This creates an asymmetry in preparation time between ICE, which had the opportunity to identify and frame the issue, and the asylum seeker, who may not have expected the motion or had time to research the country in question.
What Does This Mean for Your Case If You Are Seeking Asylum?
If you have a pending asylum case, a pretermit motion means ICE may ask for dismissal before your full hearing. This is a critical juncture. Your immigration attorney will need to challenge the motion by arguing that the named country is not genuinely safe for you or by identifying legal or factual defects in ICE's argument.
To prepare, gather evidence about conditions in the country ICE names: If ICE files a motion to dismiss your case, your attorney can request additional time to respond and can present oral argument challenging the motion at a hearing. The fact that judges are granting these motions at a high rate does not mean your case is unwinnable—it means the argument must be prepared and presented strongly. A written response to the motion, submitted within the proper timeline, creates a record the judge must address.
- Recent country reports from the U.S. Department of State or international human rights organizations
- News reports documenting violence, persecution, or instability affecting your group
- Personal evidence of persecution you faced there, if applicable
- Expert declarations about safety conditions if available through your attorney
Where Can You Find Help Responding to These Motions?
Immigration courts have legal orientation programs (LOPs) in many locations that provide free information about asylum law and procedure, though they cannot provide direct legal representation. Immigration attorneys and accredited representatives can represent you before the immigration judge and file written motions on your behalf. If cost is a barrier, legal aid organizations in your area may offer free or reduced-cost representation to immigrants with limited resources.
Documentation of your circumstances—evidence of past persecution, family connections, employment history, or group membership—strengthens a response to any motion to dismiss. An attorney can assess whether evidence exists to counter the safe third country claim and how to present it to the judge.
Frequently Asked Questions
What happens if a judge grants ICE's motion to dismiss my asylum case?
If the motion is granted, your asylum case is dismissed without a hearing on the merits. You may have appeal rights, which your attorney can explain; appeals in immigration cases go to the Board of Immigration Appeals. The timing and grounds for appeal depend on the specific reason given for the dismissal.
Can I appeal if my case is dismissed on a pretermit motion?
Yes, you typically have the right to appeal a dismissal to the Board of Immigration Appeals within 30 days. An immigration attorney can advise whether an appeal is likely to succeed based on the grounds for dismissal and available evidence.
Does being named in a pretermit motion mean I will be deported?
A motion to dismiss your case is the start of a removal process, not a final deportation order. If the motion is granted and you do not successfully appeal, removal proceedings continue, but you retain other legal options. An attorney can explain your specific situation.
What is the difference between a pretermit motion and a full asylum hearing?
A full hearing allows you to present evidence and testimony about your fear of persecution and eligibility for asylum. A pretermit motion asks the judge to dismiss before that hearing happens, usually on a procedural or legal ground rather than the facts of your case.