What is the Process after an Asylum Application is Denied?

Asylum denials rose drastically in 2018. If you or a loved one had an application for asylum denied, all hope is not lost. A denial doesn’t mean deportation is inevitable. It is possible for those denied asylum cases to be fought in court, and if still denied, to be appealed.

Step One: Denied Asylum

After an asylum case is initially denied, you will likely be referred to the Immigration Court. The first step after the initial asylum denial is getting your case in front of an Immigration Judge. Immigrants can present new documents to support their claim, testify on their own behalf, and even call witnesses in front of the Immigration Judge.

During the multiple hearings in your case, an attorney will represent DHS and will question and cross-examine immigrants and any witnesses they have. Sometimes, the Immigration Judge will interview witnesses and the immigrant him or herself. It is imperative that you are represented by a skilled immigration attorney to protect your rights and the best interests of your case.

Step Two: Appeal is Denied in Immigration Court

If the asylum application is denied in Immigration Court, the next step is to appeal the case to the Board of Immigration Appeals, or BIA. You will have 30 calendar days to file the appeal after receiving the Immigration Judge’s order. You cannot be deported during this time unless you fail to file the appeal within the 30-day time frame. If you don’t file the appeal, asylum denial becomes an order of removal, and you can be deported. Most of the time, the appeal to the BIA is done on paper, and immigrants do not have to appear in front of a judge.

This part of the appeals process will go through two stages:

  1. Notify the BIA of the appeal by completing Form EOIR-26. The BIA must have the form within 30 calendar days of the Immigration Judge’s denial of the first appeal.
  2. File a legal brief with the BIA. Within two months after the BIA receives Form EOIR-26, they will request that your attorney files a legal brief for your case. A legal brief outlines why the Immigration Judge’s denial of your asylum was wrong. Attorneys are given about 21 days to file the legal brief. After submitting the legal brief, the BIA may not give you a decision for up to a year. During this time, you cannot be deported.

Step Three: Denied Asylum from BIA

If the BIA denies asylum, you can appeal to the Federal Circuit Court of Appeals. If asylum is denied in federal court, it’s possible to take the case to the U.S. Supreme Court.

Appealing the case all the way to the federal level can be a time-consuming process. But filing appeals keeps you from being deported and gives you a chance to receive asylum. If you’ve been denied asylum, please contact our immigration attorneys at Landerholm Immigration, A.P.C. today at (510) 491-0291. We are here to help!