Cubans seeking asylum in U.S. immigration courts are facing what attorney Liudmila Marcelo describes as a blatant "violation of procedural rights." The federal government is increasingly filing motions to dismiss cases before applicants can even present their experiences.
In a conversation with Tania Costa, Marcelo, an immigration lawyer, revealed that for the past two months, the government has been filing these 'motions to pretermit' in every individual immigration court, urging judges to dismiss asylum cases without conducting a full hearing.
"For about two months now, the government has been consistently filing these motions, asking judges to dismiss cases based on a cursory review, arguing that at first glance, the case appears weak," Marcelo explained.
Judicial Independence Under Scrutiny
On the same day of the interview, Marcelo dealt with a case file containing nearly 700 pages of evidence. The judge gave it barely two minutes before siding with the prosecutor's motion. "The judge said, 'Give me a moment to glance over the record,' and within that brief time, supposedly reviewed over 700 pages," she recounted.
Marcelo attributes this issue to the lack of judicial independence among immigration judges, who are under the Department of Justice (DOJ) and follow executive directives. "Without judicial independence, with all instructions coming from above—from the government, from the DOJ—we're witnessing daily violations of procedural rights," she stated.
Impact on Asylum Cases
The standard asylum court process requires judges to thoroughly examine all evidence, question the applicant, and hear arguments from both sides. The current scenario is a stark departure: "Now, prosecutors simply say, 'Let's skip the detailed review, dismiss it now because there's no apparent basis for granting asylum,'" Marcelo described.
The statistics underscore the severity of the situation. Bloomberg Law reports that the national asylum grant rate plummeted to around 3% in 2026, down from 17% at the start of Trump's second term. By June 2026, denial rates in immigration courts soared to 94.1%.
Defensive Strategies for Asylum Seekers
In response, Marcelo and other attorneys have crafted a defensive strategy: a 14 to 15-page document called a Prejudice Statement, detailing the case, evidence, and asylum eligibility. "Even if it's overlooked, this document solidifies our position for appeals," Marcelo noted.
This document, together with oral opposition presented in court, becomes part of the record, serving as a foundation for appeals to the Board of Immigration Appeals (BIA) within 30 days using the EOIR-26 form. This appeal process can take two to three years and temporarily halts deportation.
Marcelo concluded with a hopeful caution: "I hope this phase passes like the Ecuador motions did. Remember, it's cyclical; we endured the Ecuador motions for a time, and this is quite similar."
This comparison refers to a past attempt by the government to deport Cuban applicants to Ecuador under a cooperation agreement, which attorneys successfully challenged in Miami by arguing it was meant exclusively for Central Americans.
The immigration landscape for Cubans in the U.S. is ever-changing. Stay informed about courts, asylum, and deportations in our U.S. Immigration section.
Understanding Asylum Dismissal and Appeals
What is a 'motion to pretermit' in U.S. immigration courts?
A 'motion to pretermit' is a request by the government to dismiss an asylum case without a full hearing, based on a preliminary assessment that the case lacks a strong basis for asylum.
How can asylum seekers defend against dismissal motions?
Asylum seekers and their attorneys can prepare a Prejudice Statement, a detailed document outlining the case and evidence, and present oral opposition in court to build a record for potential appeals.
Why is judicial independence important in immigration courts?
Judicial independence ensures that immigration judges can make decisions based on case evidence and legal principles, free from external pressures or directives from the executive branch.