Defensive Asylum Applications and the Government’s Illegal Use of Asylum Cooperation Agreements

How the ACA framework is being used in removal proceedings and MMH’s efforts to enjoin its unlawful use against asylum seekers

Asylum Cooperation Agreements, commonly called ACAs, are agreements between the United States and another country that allow the government to seek the transfer or removal of certain asylum seekers to that third country. The statutory authority comes from section 208(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(A). The statute permits the asylum bar only where the Attorney General determines that the person may be removed to a country where the person’s life or freedom would not be threatened on a protected ground and where the person would have access to a full and fair procedure for seeking asylum or equivalent protection.

The practical effect of an ACA motion is significant. Instead of allowing an asylum applicant to proceed directly to a merits hearing in the United States, the Department of Homeland Security may ask an Immigration Judge to pretermit—or end without a full merits adjudication—the asylum application because the applicant may be sent to another country. If granted, the motion may result in an order of removal to the designated third country without an evidentiary hearing on the underlying persecution claim.

Under 8 C.F.R. § 1240.11(h), as interpreted by the Board of Immigration Appeals, the respondent generally must establish by a preponderance of the evidence that the agreement does not apply, that an exception applies, or that it is more likely than not that the respondent would be persecuted or tortured in the third country. The regulation also provides that the immigration judge is not to independently reconsider the government’s threshold determination that the third country offers a full and fair procedure. The government’s position is that those determinations were made by executive officials before the agreement was implemented.

In Matter of C-I-G-M- & L-V-S-G-, 29 I&N Dec. 291 (BIA 2025), the Board instructed immigration judges to address the ACA bar before reaching the merits of an asylum claim. The issue may generally be resolved in an abbreviated hearing, often on the master calendar, rather than through a full individual hearing. Immigration judges may consider whether the agreement applies to the respondent and whether a regulatory exception has been established, but may not independently decide whether the third country provides a full and fair asylum process. If the respondent does not satisfy the applicable burden, the immigration judge is directed to order removal to the relevant third country.

The ACA process therefore changes the sequence and scope of immigration court adjudication. A person who has spent months preparing testimony and documentary evidence concerning persecution may first have to litigate whether the person can pursue asylum in the United States at all. Critics argue that this can transform a scheduled merits hearing into a short threshold proceeding, limit the immigration judge’s ability to develop the factual record, and prevent consideration of country conditions bearing directly on whether transfer is safe and meaningful. The government characterizes the process as a statutory screening mechanism designed to determine whether the United States is the proper forum for the claim.

The United States–Ecuador arrangement has drawn particular attention. Diplomatic notes published in the Federal Register describe an agreement concerning the dignified, safe, and timely transfer from the United States to Ecuador of third-country nationals who may seek international protection against return to their home country or former country of habitual residence. The public documents describe the general framework but do not disclose every operational detail, including all eligibility criteria or procedure governing individual transfers. That lack of publicly available information has become part of the debate over notice, transparency, judicial review, and the ability of asylum applicants to challenge Ecuador’s designation in an individualized proceeding.

The legal questions raised by ACA litigation are substantial. They include whether the executive branch has implemented the safe-third-country bar consistently with section 208 of the INA; whether applicants receive a meaningful opportunity to contest the statutory predicates; whether an abbreviated hearing satisfies due process in a particular case; whether the agency has imposed a burden not authorized by Congress; and whether a federal district court may review the framework before entry of a final order of removal. The answers may affect individual applicants and the division of responsibility among DHS, EOIR, immigration judges, the Board of Immigration Appeals, and the federal courts.

YG v. EOIR

In August 2026, Robert Carpenter of MMH filed a lawsuit seeking to enjoin the government’s use of an ACA just two days before an individual hearing that the firm and its client had spent years preparing for. YG v. Chicago EOIR is pending before Judge Seeger in the Northern District of Illinois. The Administrative Procedure Act action concerns a Venezuelan family with a meritorious asylum claim.

The complaint alleges that DHS filed an ACA motion to pretermit shortly before the scheduled individual hearing, invoking the United States–Ecuador arrangement. It further alleges that the immigration judge continued the matter for an abbreviated master-calendar proceeding in reliance on Matter of C-I-G-M-, rather than allowing the family to present its asylum claim through a full evidentiary hearing. YG v. Chicago EOIR challenges the ACA framework as contrary to the INA and the Administrative Procedure Act, in violation of the Fifth Amendment’s Due Process Clause and the United States’ obligations concerning non-refoulement and access to protection. The plaintiffs seek declaratory and injunctive relief requiring that their asylum claims receive a full and fair hearing and preventing their removal to Ecuador under the challenged framework.

Why the litigation matters

YG v. EOIR illustrates the collision between a government policy intended to expedite third-country processing and an asylum system built around individualized fact-finding. The case asks whether a person with a substantial, fact-intensive persecution claim can be diverted from a scheduled merits hearing through a last-minute threshold motion, and whether an immigration judge must accept the executive branch’s determination that the third country is safe and procedurally adequate.

As ACA use expands, courts may be asked to define the limits of executive authority under section 208(a)(2)(A), the procedural protections owed to asylum applicants, and the proper role of immigration judges in developing the record. Those decisions will determine whether the ACA process functions as a narrow statutory screening mechanism or as a substitute for the individualized asylum hearings that applicants and counsel have traditionally prepared to present. MMH is now at the forefront of that fight.

This article is for general informational purposes and does not constitute legal advice. The discussion of YG v. EOIR summarizes allegations in a complaint and does not predict the outcome of the case.