The Board of Immigration Appeals (BIA) has opened a new pathway to resolve asylum applications without the need for a evidentiary hearing: immigration judges may dismiss an application sua sponte when the facts and evidence presented do not establish, prima facie, eligibility for the requested protection, without requiring the Department of Homeland Security (DHS) to submit a motion beforehand.
The precedent, Matter of G-R-B-, 30 I&N Dec. 102 (BIA 2026), was issued on September 29 and is particularly relevant for immigrants seeking asylum before the courts, including many Cubans with I-220A.
The decision explicitly states that "an immigration judge may bypass a request for asylum and for suspension of deportation without the Department of Homeland Security filing a motion."
In practical terms, this means that the judge does not need to wait for the government attorneys to request the case to be dismissed. The judge can review the motion and the evidence presented and determine that it is unnecessary to proceed to an evidentiary hearing if, even considering the facts presented by the immigrant in a favorable light, they do not establish a prima facie case for the requested protection.
The BIA clarified, however, that the immigrant must have had a fair opportunity to present evidence and articulate the grounds of their application before the judge makes that decision.
The I-589 and the evidence can determine the future of the case
The precedent takes an additional step regarding what was established in September 2025 in Matter of H-A-A-V-, 29 I&N Dec. 233, when the BIA determined that a judge does not need to hold a full evidentiary hearing if the facts alleged in the application, considered in the most favorable light to the immigrant, do not demonstrate prima facie that they qualify for asylum, suspension of deportation, or protection under the Convention Against Torture.
The difference is significant: in that case, DHS had requested the dismissal. Now, with Matter of G-R-B-, the BIA establishes that such a government petition is not necessary.
This increases the importance of form I-589 and the evidence submitted to support it, as the written record can be decisive in determining whether the case proceeds to a hearing where the immigrant can testify.
The case that set the new precedent
The Matter of G-R-B- arose from the case of a Mexican citizen whose request for asylum, suspension of deportation, and protection under the Convention Against Torture was overlooked by an immigration judge on May 5, 2026.
The man claimed to fear suffering harm in Mexico from private actors due to his race and belonging to a certain social group.
According to the official decision of the BIA, the judge considered, among other factors, that there were no claims of previous damage due to racial reasons that reached the level of persecution nor specific evidence of a well-founded fear of future persecution for that reason.
The BIA also indicated that the applicant did not significantly develop their arguments in the appeal against the conclusion that the proposed social group was not legally recognized and that their asylum application had been submitted outside the appropriate timeframe. Therefore, it deemed those issues waived in the appeal.
The court ultimately upheld the procedural omission and dismissed the appeal.
What does I-220A mean for Cubans?
The precedent is not specifically aimed at Cubans nor does it by itself alter the legal status of the I-220A, but it holds particular significance for those with pending defensive asylum applications before an immigration court.
The lawyer Willy Allen had already warned in October 2025 about the consequences that Matter of H-A-A-V- could have for poorly prepared asylum cases.
"If not all the questions on the asylum application were answered, or if details were omitted, the immigration judge can automatically dismiss the case because it is incomplete," he explained at the time.
With the new precedent, it is explicitly established that the judge can dismiss the request on their own initiative, without DHS filing a motion.
To pass that initial examination, the case must present facts that, if considered true, can fulfill the legal requirements for the requested protection. In matters of asylum, this includes establishing the connection between the alleged or feared persecution and at least one of the grounds protected by law: race, religion, nationality, membership in a particular social group, or political opinion.
Economic difficulties or the desire to find better living conditions, on their own, do not constitute one of those protected reasons.
The change comes at a particularly uncertain time for many Cubans with I-220A who have ongoing proceedings in immigration courts.
A class action lawsuit filed by 992 Cubans with I-220A in Miami continues its judicial journey, while recent changes in immigration policy have heightened concerns among those who still rely on an asylum process to remain legally in the United States.
Lawyer Liudmila Marcelo emphasized this week the importance of having legal representation, especially as the final hearing approaches.
"I do not advise anyone at this time to go without a lawyer, at least for their final hearing. Why? Because that ensures you can file a well-prepared appeal if that case ends up being lost," he stated in comments reported by CiberCuba.
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