This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
On September 29, 2026, the Board of Immigration Appeals issued a short precedent decision that will cast long shadow. In Matter of G-R-B-, 30 I&N Dec. 102 (BIA 2026), the Board held that an immigration judge may pretermit an application for asylum and without a motion from the Department of Homeland Security.
“Pretermit” is lawyer’s prattle. In plain English, it means the judge reads your paperwork, decides it doesn’t state a winning claim, and denies it — without ever letting you take the witness stand to tell your story.
My prediction is simple: immigration judges will use this power to deny asylum cases in large numbers. The purpose of this advertorial is to explain why.
Pretermission is not new, but until recently it was rare. In 2025, the Board decided Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), which held that a judge need not hold a full evidentiary hearing when the written application, taken at face value, does not establish prima facie eligibility for relief. In practice, the government usually started that process by filing a motion to pretermit. That motion gave the applicant notice that his case was in danger and a chance to answer it. Requiring ICE-OPLA to submit a written motion also gave the prosecutor a chance to assess the claim independently.
G-R-B- removed that step. In G-R-B-, a Mexican man applied for asylum, withholding of removal, and protection under the Convention Against Torture, based on fear of harm. DHS never asked the judge to pretermit. The judge did it anyway, on the judge’s own initiative and without a hearing — and the Board approved the practice.
The upshot is that the judge can now act as both prosecutor and decision-maker on the question of whether your case even gets a hearing. DHS no longer needs to lift a finger.
This would not be worrisome if immigration judges exercised effective independence from the Justice Department. Unfortunately, a procedural tool is only as dangerous as the people who hold it. And the people who hold this one are under enormous pressure.
According to an August 2026 report from TRAC at Syracuse University – the leading statisticians of the immigration courts – 279 immigration judges were fired or resigned during fiscal years 2025 and 2026. That’s roughly 38% of the 735 judges who were on the bench at the end of fiscal year 2024. During the previous four years, the average annual departure rate was about 5%.
The judges who remain have noticed. TRAC tracked 130 judges who stayed continuously on the bench from fiscal year 2021 through fiscal year 2026. Three out of four of them deny asylum more often today than they did in 2021, and the median judge’s denial rate rose by 28 percentage points. In June 2026, the overall asylum denial rate hit 94.1%. (Prior grant rates hovered around 40-50%.)
I do not think these judges suddenly changed their minds about the law and I do not think that the quality of asylum applications has plummeted. I think that these judges are frightened about losing their livelihoods, and they are right to be. Their colleagues were fired in large numbers. Judges are smart people. They know that these firings were done, as Voltaire put it, pour encourager les autres.
Now, those judges have tool that lets them deny an asylum case on the papers, at an early hearing, without waiting for DHS to ask. DOJ’s leadership will not hesitate to use the availability of that tool to pressure judges to deny more cases, and deny them faster.
Some immigration judges who survived the purge may have hoped to wait out the Administration. That was not an unreasonable bet. Immigration court is slow, even when far-away administrators are trying to force-feed cases through the machinery. A judge could keep her head down, develop the evidentiary record fully in each case, and hope that a new Administration would arrive before too much damage was done.
Fabianism can work against an invader who must eventually go home. It does not work against an antagonist who controls the calendar, the rules, and the payroll.
If you have a pending asylum case, or are thinking about filing one, you should assume that your written application may be the only chance you get. Under G-R-B-, the judge can decide your case before you ever testify. Here is what I recommend:
1. Do not file a bare-bones I-589. The application must state, on paper, every element of your claim: what happened, who did it, why they did it, and why the government cannot or will not protect you.
2. Define your particular social group carefully. If your claim rests on membership in a particular social group, the group must be defined clearly in the initial application.
3. Front-load your evidence. File a detailed declaration, corroborating documents, and country conditions evidence early. Do not hold your best material back for a hearing that may never happen.
4. Get a lawyer. Asylum law was never simple. After G-R-B-, a mistake in the written application can end your case before it begins.
If the Department of Justice forces immigration judges to pretermit cases en masse, none of those precautions will stop them from doing that to you. But it will create a helpful record for appeal – not at the Board of Immigration Appeals, but actual federal Circuit Courts of Appeal, where life-tenured judges who are not intimidated by this Administration have handed down loss after loss after loss.
