Appeals Process After a Denied Asylum Application

An overview of the administrative and court appeals available to you after an asylum denial.

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, although you likely won't be able to get a work permit until you are granted asylum status.

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

Denial by 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 will hear 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 may be continued to future dates.

Unlike the first interview you had, however, 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 that you bring in. The judge may also question you directly.

Denial by Immigration Court – Appeal to BIA

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 BIA) 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 BIA appeal is done entirely on paper. It is rare for someone to appear in person before the BIA.

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, preparing a copy of the immigration court’s asylum denial, and completing EOIR-27 if you are represented by counsel (strongly recommended). You will need to meet a strict deadline: The BIA 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. Also make sure to use the proper address—it differs depending on the method by which you mail it.

You must mail a check for the current filing fee, payable to the US Department of Justice, or else complete and mail Form EOIR-26A, which requests that the fee be waived.

2. File a legal brief with the BIA.

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 BIA to render its decision.

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

Denial by BIA – Appeal to Federal Court

If the BIA 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.

Appeal in federal court can be worthwhile for many immigrants, particularly if they had an immigration judge known for denying asylum, and feel that the BIA merely rubberstamped the decision. Unfortunately, you may have to face 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 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 be upwards of several thousand dollars, but their experience is critical to making a successful case.

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