Cubans with asylum cases in U.S. immigration courts are facing a practice that attorney Liudmila Marcelo describes as a "violation of procedural guarantees": the federal government submits motions to close cases before the applicant can even explain their experiences.
Marcelo, an immigration lawyer, recounted in an interview with Tania Costa that for approximately the past two months the government has been presenting these motions —known as 'motions to pretermit'— in all individual immigration courts, urging judges to dismiss asylum cases without holding a full hearing.
"About two months ago, the government has been constantly filing these 'motions to pretermit,' in which they ask the judge to dismiss the case, because when the case is looked at from a superficial perspective, as they put it, it is deduced from the reading of the case that the person does not have a strong asylum claim," the lawyer explained.
On the same day of the hearing, Marcelo faced this situation with a file of nearly 700 pages of evidence. The judge barely dedicated two minutes before granting the prosecutor's motion. "The judge said, 'Give me a second, let me take a moment to look at the record,' and that was when the judge decided to glance at the more than 700 pages in the file, and of course, in two minutes, one cannot read 700 pages," he recounted.
The lawyer attributes the phenomenon to the lack of judicial independence among immigration judges, who depend on the Department of Justice (DOJ) and receive direct instructions from the executive. "Since there is no judicial independence for immigration judges and all the directives come from above, from the government, from the DOJ, we are seeing that every day what happens is that we encounter these violations of procedural guarantees," she stated.
The normal process of an asylum court requires that the judge review all the evidence beforehand, question the applicant, and listen to the arguments from both sides. What is happening now is radically different: "What’s going on is that the prosecutor comes in and says no, let’s skip this, we’re going to be here for two hours for no reason, dismiss it now because I see there’s no basis to grant asylum."
The figures support the seriousness of the situation. According to data from Bloomberg Law, the national asylum grant rate fell to approximately 3% in 2026, down from 17% at the beginning of Trump's second term. In June 2026, the denial rate reached 94.1% in immigration courts.
In this context, Liudmila Marcelo and other lawyers have developed a defensive strategy: to present a document of 14 or 15 pages—called a Prehearing Statement—that explains the case point by point, including the evidence and the fulfillment of the requirements for asylum. "He may not see it, but we have on record what our position was for the appeal," the lawyer explained.
This document, along with the oral opposition that lawyers may present in court, is recorded in the case file and serves as a basis for appealing to the Board of Immigration Appeals (BIA) within a period of 30 days using the EOIR-26 form. This process may take between two and three years to resolve and temporarily suspends the execution of the deportation.
Marcelo closed with a note of hopeful caution: "I hope this passes like the motions from Ecuador did. Remember that it's cyclical; we spent some time suffering through the motions from Ecuador, and this is exactly the same."
The comparison refers to a previous period when the government attempted to send Cuban applicants to Ecuador under a cooperation agreement, a practice that lawyers managed to halt in Miami by arguing that this agreement does not apply to Cuban citizens as it was exclusively intended for Central Americans.
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