New York Lawyer's Legal Updates

What Happens If Asylum Case Is Denied After The Interview?

Author: Asylum lawyer Alena Shautsova

Under the Immigration laws, an asylum applicant has to first submit his/her application for asylum with the administrative body or Asylum office of USCIS. The form i-589 and supporting documents are being sent to the address specified in the instructions to the form, and then an applicant has to wait for an interview. At the interview, as asylum officer will be asking the applicant questions to verify applicant’s eligibility for asylum.

What happens after the asylum interview? After the interview, an applicant has to come to the office and pick up the decision. Often, the decision is issued in two weeks after the interview. The decision may come in different forms: approval, recommended approval, denial, notice to intend to deny (which is usually mailed).

What is a denial after the interview? A denial after the interview means that an applicant will have to prove his/her edibility for asylum in court. It means that it is not a final denial, but a denial of the case at the administrative level.

An individual whose claim was denied, will be placed in removal proceedings (if by that time his/her legal status in the United had expired). During these proceedings, an individual will have a second chance at explaining to an Immigration Judge their position on why they believe they need Asylum from their home country. These proceedings are very formal, and it is best that an applicant works with an attorney.

Will the court look and consider the administrative denial? The good news is that the court is not bound by the administrative decision, and has to consider the case de novo. However, the judge will see the administrative file, and this fact should be taken into consideration.

The most common reasons for the judge to deny one’s asylum claim are lack of credibility that comes from inconsistent testimony, and failure to present a claim that would be legally sufficient.

For example, one is afraid to go back to his home country because he/she is afraid of the military service. Unless participation in the military service is connected with one’s political/ religious opinion or practice, such a fear is not a reason for asylum in the United States. It should be noted here, however, that “court views” and considerations are changing with time. If ten year ago, victims of domestic violence were not considered a relevant group for asylum purposes in the United States, now, due to strong advocacy on their behalf, domestic valance victims have strong asylum claims. The same goes for those who fight corruption, practice certain religions, are afraid of gangs, or start to express certain political views only after they come to the Unites States. The law and the way we look at things are constantly changing, and if one’s case is in Immigration court, he/she should be aware of these changes.

If the judge denies one’s claims, he/she can appeal the decision with the Board of Immigration Appeals. The last chance for the appeal will be at the Federal Court level.

21 March 2016
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