The U.S. Citizenship and Immigration Services (USCIS) denied nearly 60,000 asylum requests in 2020. Asylum denial can be devastating, and with many countries worldwide experiencing economic and humanitarian crises, the demand is higher than ever. So, what happens when an asylum request is denied?
What Is Asylum?
Every year, thousands of people seek protection in the U.S. because of persecution or seek refuge from dire circumstances in their home countries. Asylees are protected from removal and are authorized to work in the United States. They may also apply for other immigration benefits like lawful permanent residence (LPR) and citizenship.
There are two ways to apply for asylum in the United States:
- Affirmative Asylum: Those who are not involved in removal proceedings can apply for asylum through the USCIS. If the applicant is denied, he or she is referred to an immigration court to begin removal proceedings.
- Defensive Asylum: Asylees in the removal process may apply for asylum by filing an application with an immigration judge at the Executive Office for Immigration Review (EOIR). Essentially, this means that the asylum application is a defense against removal. The EOIR does not provide legal counsel for individuals in immigration court.
Generally, asylum seekers at a port of entry must apply defensively to avoid removal. In fact, in 2019, over 210,000 people applied for asylum defensively.
There is no guaranteed result for an asylum request, but depending on whether you apply affirmatively or defensively, the denial process may work a little differently. The good news is that as long as you take action before the final denial, you may be able to appeal the decision to deny your application.
The USCIS will send a notice of intent to deny (NOID) if you are ineligible for asylum in the U.S. You will have up to 16 days to send a written explanation of why the judge should reconsider your claim and/or submit evidence to support your case. If you fail to respond, the USCIS will proceed with the denial process. Additionally, if the information submitted in your response is not enough to outweigh the reasons for denial, the USCIS will issue a final denial. Once the final denial is issued, you cannot appeal the decision.
Denial by Asylum Office
For those who file affirmatively, a denial notice does not come with automatic removal. You will be referred to the Immigration Court (EOIR), where a judge will hear your case. At this point, you can file new documents, present evidence, and even call witnesses to testify before the court. Keep in mind that a Department of Homeland Security representative will be present to oversee the proceedings.
Essentially, the DHS representative has the same power as a prosecutor. He or she can cross-examine any witnesses and question you during your testimony. It is critical that you have legal representation to help you prepare for questions and build a strong case to present to the court.
Denial by Immigration Court
If the judge denies your asylum case, you have up to 30 days to file an appeal with the Board of Immigration Appeals (BIA). You are still protected from deportation, but if you fail to meet the appeal deadline, the asylum denial will become an order for removal.
Anyone seeking an appeal through the BIA will need to go through two stages:
- You must first notify the BIA of the appeal by completing Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge. If you have legal representation, you will also need to complete EOIR-27, Notice of Entry of Appearance as Attorney or Representative before the Board of Immigration Appeals.
- Once you have sent notification of your intent to appeal, the BIA will request that your attorney file a brief on your behalf that details your reasons for asylum and why the original decision was wrong. Review of a legal brief can take up to a year, so be patient.
Denial by Board of Immigration Appeals
Even if the BIA denies your appeal, you can still file an additional appeal with the Federal Circuit Court of Appeals in your district or the U.S. Supreme Court if the Circuit Court denies the appeal.
In some cases, a federal appeal may be in your favor, especially if you were denied by an immigration judge with a habit of denying asylum seekers. If you feel like the BIA passed on your appeal flippantly, you may want to look into a federal appeal. However, you cannot do so unless you have a legal representative to stand with you and enough resources to afford the legal fees and court process.
The immigration system, in general, is extremely complicated, and many immigrants encounter issues along the way. That is why it’s so important to have an experienced immigration lawyer on your side.
Filing an asylum appeal is tedious, and there is an increased risk of removal the further you go in the process. Additionally, immigration is constantly changing in the U.S., and there are always new laws and exceptions that make filing for any immigration benefit or request more complicated.
If you need to file an asylum denial appeal, don’t hesitate to contact Maghzi Law Firm, LLC. We offer legal services in English, Spanish, Portuguese, and Farsi.