Appeals Process After a Denied Asylum Application

What exactly will happen after you are denied asylum depends on where you are in the application process.

If your application for asylum in the United States is denied, you have a long road ahead of you. The good news is that, by taking the proper steps, you need not fear immediate deportation. The bad news is that if you haven't yet received a work permit, you might not be able to get one until you are granted asylum status.

What exactly will happen next depends on where you are in the application process.

If You Were Denied by the Asylum Office—Referral to Immigration Court

If you filed an affirmative application for asylum, and attended an interview with an asylum officer, your denial does not come with any immediate order of removal from the United States. Instead, you will be referred to the Immigration Court (also known as the Executive Office of Immigration Review, or EOIR). There, an Immigration Judge (IJ) will hear and decide on your case.

You will have an opportunity to file new documents, call witnesses, and testify on your own behalf. If your case cannot be fully presented in one day, the hearing might be continued (postponed) to future dates.

Unlike the first interview you had, there will be an attorney for the Department of Homeland Security (DHS) present in Immigration Court. That attorney may question you and cross-examine any witnesses you bring in. The judge may also question you directly.

If You Were Denied by an Immigration Court Judge—Appeal to B.I.A.

If the Immigration Judge denies your claim for asylum, you will have 30 days in which to file an appeal with the Board of Immigration Appeals (known as the B.I.A.) in Falls Church, Virginia. During this period, you are still protected from being deported—unless you fail to meet the 30-day deadline, in which case the asylum denial will convert into an order of removal.

Typically, the B.I.A. appeal is done entirely on paper. It is rare for someone to appear in person before the B.I.A..

Your appeal will have two procedural stages to get through:

1. You notify the Board of Immigration Appeals of the appeal

This is done by completing Form EOIR-26 from the EOIR website, preparing a copy of the immigration court's asylum denial, and submitting Form EOIR-27 if you are represented by counsel (strongly recommended).

You will need to meet a strict deadline: The B.I.A. must receive your package no later than the 30th calendar day from the date of the Immigration Judge's order (the day it was rendered orally or mailed). Make sure to send the package in a manner that can be tracked, such as with a package service or by certified U.S. mail.

You must pay a filing fee, or else complete and mail Form EOIR-26A, which requests that the fee be waived.

2. File a legal brief with the B.I.A.

The second part of the appeal takes place within about two months, when your attorney is requested to file a legal brief on your behalf—that is, a written argument about why the Immigration Judge was wrong in denying you asylum. Your attorney will be given three weeks (21 days) in which to submit this.

After these documents are filed, it can take around a year for the B.I.A. to issue its decision.

(For a more thorough discussion of the process, see Appealing an Immigration Court Decision to the B.I.A..)

If You Are Denied by the B.I.A.—Appeal to Federal Court

If the B.I.A. denies your appeal, you may file another appeal, this time with the federal Circuit Court of Appeals that serves your jurisdiction. If that fails, you may continue your appeal up to the U.S. Supreme Court (if it accepts the case, which is unlikely).

Appeals in federal court can be worthwhile for many immigrants, particularly if they were placed with an immigration judge who is known for denying asylum, and indications exist that the B.I.A. merely rubberstamped the decision. Unfortunately, unless you can find an attorney to do volunteer (pro bono) work on your behalf, you might have to pay high legal fees, as federal court appeals are demanding and time consuming.

If you do not file further appeals, you will be expected to leave the United States immediately.

Getting Legal Help

If your asylum application is denied, it is imperative you get the help of an experienced immigration attorney. Your attorney can help you pinpoint exactly why the original application was denied and develop a strategy to help you win your case on appeal.

The cost of an attorney to appeal your case will likely be upwards of several thousand dollars, but their experience is critical to making a successful case.

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