What Are Your Options Following Denial of Your Asylum Application?
UPDATED: April 1, 2014
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If an immigration judge denies your asylum application, you have three options: (1) accept the decision, (2) request that your case be reopened, or (3) appeal the decision to the Board of Immigration Appeals (BIA). If you accept the immigration judge's decision, removal proceedings will continue against you and, in all likelihood, you will be returned to your native country. On the other hand, requesting to reopen the case or appealing to the Board of Immigration Appeals are possibilities, but require strict compliance with immigration laws and procedures.
Requesting to Reopen Your Asylum Case
A request to reopen is what the name implies: you are requesting the court to call your case again and hear or receive more evidence. To qualify for reopening, you must demonstrate that you have new or different evidence. If you cannot show that the evidence is new, your request to reopen will be denied. If your request is approved, then your case will be set for another hearing where you will have the opportunity to present the additional information.
An immigration judge will not allow you to delay removal proceedings by continuously reopening your case. Make sure that you have your evidence together to present when your request to reopen is approved. Reopening does not guarantee that the immigration judge will approve your asylum request. If your request is denied, you still have the option of appealing the immigration judge's decision.
Appealing an Asylum Decision to the Board of Immigration Appeals
An immigration judge's decision is discretionary, which means that it is sometimes difficult to win an appeal. However, appeals to the BIA can be a successful avenue for reversing or undoing the immigration judge's decision. To perfect your appeal, you must first have standing to do so, which basically means that only you can appeal your decision. You cannot appeal someone else's decision for them, and vice versa.
If you have standing, your next step is to submit a notice of appeal. This notice must be filed within 30 days of your receipt of the immigration judge's decision. Your notice of appeal should include a specific list of reasons you are requesting an appeal. One example of a valid reason for appealing could be that the immigration judge used the wrong test for determining whether you had a credible fear of persecution. Your notice should also include a legal brief explaining your reasons in more detail and citing to the appropriate immigration laws for support.
You will also be required to pay a fee for your appeal; however, you can request a waiver of the fee if you are indigent. Additionally, failure to comply with the basic timelines or filing requirements can result in your appeal being dismissed without any real consideration.
Your appeal from an immigration judge will go to the BIA in Washington. The BIA will review your appeal and may accept oral arguments if either side requests the additional opportunity to be heard. The BIA will return a decision on the appeal anywhere from six months to a year after the time of filing. The BIA might reverse the immigration judge's decision, or it may remand the case back to the immigration judge for further consideration, with instructions on how the immigration judge should handle a particular issue. If the BIA rejects your appeal, you can appeal to yet another level – the U.S. Circuit Court of Appeals – which utilizes similar deadlines and requirements.
Immigration law is an overlap of statutes and administrative codes. Missing a requirement under either can result in a forfeiture of your appellate rights. If you have questions about how to perfect your appeal, contact an experienced immigration lawyer to help you through the process.