Will Your Asylum Case Come Before an Immigration Judge?

An immigration judge will hear an asylum case if it falls within one of the following categories: (1) affirmative applicants whose cases were denied by the asylum officer; (2) arriving asylum seekers who are detained under the expedited removal or credible fear procedures; and, (3) those arrested by U.S. Immigration & Customs Enforcement (ICE) who are applying for asylum for the first time in immigration court. This latter type of asylum request is known as defensive asylum processing, because the asylum seeker is essentially defending against involuntary removal.

Defensive Asylum vs. Affirmative Asylum Processing

Defensive processing, by nature, is different than affirmative processing. Affirmative asylum processing utilizes non-adversarial interviews to gather information. Interviews involve an immigration officer and the asylum seeker sitting down to discuss factual issues related to the application. Defensive processing, on the other hand, is adversarial in nature. You do not have the benefit of a one-on-one interview with an immigration officer. Instead, you will face a hearing with an immigration judge in which you must present evidence in compliance with the rules of evidence. If you choose to testify during the hearing, an attorney for the government will have the opportunity to cross-examine you with a series of questions. The government will also have the right to present evidence against your request for asylum.

Preparing for a Hearing with an Immigration Judge

Because the defensive asylum process is adversarial, it is imperative that you have your evidence clearly organized prior to your hearing. You should also have at least a general outline of the case you wish to make so that the immigration judge clearly understands your position. Your evidence and testimony must demonstrate that your fear of persecution is credible should you be forced to return to your native country. Factors that you should highlight, if applicable, include: why you left your native country, the political situation in your native country, and harm or threats of harm that have been directed toward you and your family.

Admitting evidence properly and making legal arguments is a skill requiring extensive training. Going without legal representation during this process can certainly have dire consequences, as losing means you will face removal from the United States. Even if the court will not appoint an attorney to assist you, you should still try to secure the advice or representation of counsel. An experienced immigration attorney can help you make sure that the immigration judge receives your evidence properly and understands your request for asylum. They can also protect you from having to answer improper questions from the government's attorney. If you cannot afford an attorney, many non-profit organizations provide support.

An immigration judge will decide in a court proceeding whether your asylum case has any merit. While their decisions are discretionary, you do have the right to appeal if you think the judge made an incorrect decision. Again, an attorney experienced in immigration law can help protect and preserve all of your rights during defensive asylum processing.

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