If you have been persecuted in your country — or you are afraid of being persecuted if you are forced to go back — denial of your U.S. asylum application may seem like the the worst possible outcome. But it is not the end of the world. Legally, you can appeal this decision. Here’s what you should know about this process.
What if the asylum office denies my application?
Don’t panic if your affirmative asylum application was denied after your interview with an asylum officer. There is no need to fear immediate deportation (or removal) from the United States. Instead, your case will automatically be forwarded to the Immigration Court (which is also called the Executive Office of Immigration Review, or EOIR) and you will be allowed to stay here pending the outcome.
When your case is heard in Immigration Court, you can:
- Ask other people who know you to testify about your situation
- Tell the Immigration Judge about your situation yourself
- File new paperwork
- Have your case heard over several days (if necessary)
However, you should be aware that a government attorney (for the Department of Homeland Security) will also be at the Immigration Court hearing when your case is presented. He or she will also be able to ask you questions, and question anyone who testifies about your request for asylum. The judge may also question you, and is solely responsible for deciding the outcome of your case.
What if the Immigration Judge denies my request?
If the Immigration Judge also (IJ) rejects your request for asylum, there is still hope. This is because you can appeal the Immigration Court’s decision to another, independent panel called the Board of Immigration Appeals (BIA). However, there is a strict, 30-day deadline for requesting this appeal by mail after the IJ renders his or her decision.
The BIA is responsible for reviewing the transcript of your hearing before the IJ, along with any written material you submitted to the court, and the IJ’s decision to see if the IJ made a mistake. Therefore, there is no need for you to appear before the BIA, and you are not allowed to provide any new evidence unless it was unavailable before.
By this point, you should be represented by an experienced immigration attorney. If you do, he or she should submit a written legal argument called a brief, and file it along with other forms listing all of the particular reasons why the IJ’s decision was incorrect based on the facts your case.
If the BIA finds that the IJ wrongly denied your claim, it will either grant you asylum or order that the IJ rehear the case.
However, you should be aware that it usually takes at least a year for the BIA to issue rulings in these cases.
But what if the BIA says the Immigration Judge was correct?
If your asylum case gets to this point, the next step is to appeal to the the U.S. Circuit Court of Appeals. This is a federal court for the part of the U.S. where you live.
At this stage, your lawyer should prepare a written brief explaining where the BIA made mistakes or why its decision was an abuse of authority.
If your case is chosen for “oral argument,” your lawyer must tell the panel why you should get asylum and why previous denials were incorrect. However, you won’t have to appear in person, nor will your witnesses. You cannot submit new evidence.
Depending on where you live, it may take the court as long as three years to issue a decision in your case.
I have heard you can appeal to the U.S. Supreme Court. Is this true?
Yes, it is true that you can appeal to the U.S. Supreme Court, but only after the U.S. Circuit Court of Appeals denies your case.
If you decide to pursue this option, your lawyer must ask the U.S. Supreme Court to hear your case by submitting a petition for a “writ of certiorari.” However, the Supreme Court is not obligated to do so. In fact, it only chooses a select group of cases to hear and review each year. In all likelihood, the U.S. Supreme Court probably won’t take your case unless it raises issues that would wrongly affect current and future asylum seekers.