Safe Third Country / ACA Bar

29 I&N Dec. 291 (BIA 2025) · 2025

(1) If DHS claims an asylum cooperative agreement bars an applicant from seeking asylum, the IJ must determine whether the safe third country bar applies prior to and separate from considering asylum eligibility. (2) A respondent subject to an ACA bears the burden by a preponderance of the evidence to show she will more likely than not be persecuted on a protected ground or tortured in the ACA country to avoid application of the bar.

Foundational BIA decision establishing the procedural framework for ACA-based safe third country bar litigation.

29 I&N Dec. 746 (BIA 2026) · 2026

DHS's oral motion to pretermit respondents' applications for asylum and related protection was sufficient notice of its intent to remove respondents to a third country pursuant to an asylum cooperative agreement.

DHS need not file a written motion to invoke the ACA bar — an oral motion at the hearing is procedurally sufficient to trigger ACA pretermission proceedings.

29 I&N Dec. 753 (BIA 2026) · 2026

DHS is not required to provide an implementing instrument showing the operating procedures for an asylum cooperative agreement or a complete set of operative terms in order to establish that an alien is subject to the ACA in the context of the safe third country bar.

DHS need not produce the underlying ACA treaty text or implementation procedures to invoke the bar. The government can establish ACA applicability through other means.

29 I&N Dec. 703 (BIA 2026) · 2026

When an alien is subject to an ACA and the record is devoid of evidence showing an individualized risk of harm in the ACA country of removal, it is generally unnecessary to hold an evidentiary hearing to resolve the applicability of the safe third country bar.

Respondents must affirmatively raise an individualized risk of harm in the ACA country to obtain an evidentiary hearing. Absent such a showing, the IJ may resolve the ACA bar on the papers.