New York Lawyer's Legal Updates

US Asylum: Motion To Reopen Or Reconsider Affirmative Asylum Proceedings After Failing The Interview

Author: USA Asylum attorney Alena Shautsova

New York Immigration lawyer Alena Shautsova helps clients with affirmative asylum process in the US.

After USCIS changed its procedure for calling applicants for asylum interviews from a “first-come-first-serve” basis to a “last-in first-serve” basis, many people have found themselves stuck waiting for interviews. For some, this is not the end of the world. The change has given the pending applicants more time to get documents prepared for their case and even a potential for the situation in their countries to quiet down and allow them to safely return to their countries without having to go through the US Asylum procedure in entirety. For others, it pushes them to get a case together in a relatively short period, which can be a blessing or a curse depending on the type of person you and your attorney are. In either situation, when USCIS finally calls a person for the interview, it is one of the most important days of a person’s life.

Sometimes the weight of this importance is too much for a person to handle, and they do a poor job answering the questions or remaining calm and clear-headed. USCIS Officers have some training and are aware of this test-taking phenomenon. However, it is exceedingly difficult in these situations to tell if a person is genuinely a “bad test-taker” or a fraudster. In other cases, the Asylum Officer may not fully understand the person’s claim for asylum because of a language barrier, translational barrier, or lack of knowledge on the subject matter. In the USCIS Officer’s mind, the fairest option is to refer the applicant to the Immigration Court. In Immigration Court, a person will have a second chance to explain their case before an Immigration Judge and will have more time to gather evidence if need be and country conditions experts or reports on the subject matter of their claim. For the asylee applicant, though, this can be a devastating decision: especially if it was due to nervousness or last-minute cancellation of an expert witness to attend the interview.

In the US Affirmative Asylum case procedure, an applicant has 30 days to produce a motion to reopen or reconsider after receiving a decision to refer the case to Immigration Court or a full denial. There are two reasons a person can reopen their case or have it reconsidered. The title for the motion will depend on which reason pertains to the asylee applicant’s case.

  1. Motion to Reopen – Available when new evidence is readily available that was not available at the time of the interview.
    1. New evidence can include a country conditions expert report, recent updates on the situation directly related to an applicant’s asylum claim, the affidavit’s from relevant persons or official documents such as police reports or medical records.
    2. USCIS also takes into consideration the type of new evidence and the difficulty in obtaining such evidence at the time of the interview.
      1. For example, an affidavit from an applicant’s parent that is “new and now available” may not be very strong and convincing because the argument that you had the ability to obtain this information before the interview could be substantial.
      2. If the parent were incarcerated until recently due to something related to the asylum claim, the ability to get an affidavit and documents from them would have been difficult as they were incarcerated at the time. The example above would improve the likelihood of success for the motion to reopen to be granted.
  2. Motion to Reconsider – When the decision to deny or refer the case to the Immigration Court is based on a misapplication of the law.
    1. The most common example of this is fitting an asylee applicant’s case for asylum into the membership of a particular social group. Sometimes, it is difficult to assess whether a person fits the criteria for membership of a particular social group. The definitions of “particular,” “social,” and “group” are in fact particular, and each word in this category has its own standard to meet before USCIS finds an applicant to be a member of a particular social group. For more information on the criteria to determine the membership of a particular social group, you can read my article: “What Does Membership In A Particular Social Group Really Mean?
    2. Motions to reconsider are hefty legal motions that require the support of caselaw and supporting documentation from reports and interpretations of legal experts as well as citations from USCIS practice manuals. It is highly recommended to hire an experienced attorney for motions to reconsider. No new evidence can be submitted in a motion to reconsider. If a person has new evidence that would help support the case and prove that they fit the criteria, the asylum officer does not believe they do; a motion to reopen may be a wiser option.

The motions to reconsider and reopen are usually filed with the asylum office that issued the denial or referral to Court. However, in the rare cases where the error may have been intentional and not benign, an applicant should submit a copy of the motion to the Washington D.C. Asylum Division Headquarters. In my experience, asylum officers are very professional in New York, and my clients nor I have experienced any egregious conduct from them. However, knowing where to file a complaint to protect yourself is useful information to have if a person feels the asylum officer mistreated them. According to the USCIS Asylum Manual:

An asylum applicant may apply for asylum after the issuance of a final denial, or dismissal of a motion to reopen or reconsider by the Asylum Office as long as he or she is not under the jurisdiction of the Immigration Court. An applicant who withdrew an asylum application may also submit a new application, as long as the Asylum Office has jurisdiction to hear the claim. A withdrawn asylum application cannot be reopened, except as provided in the ABC/NACARA Procedures Manual for rescission cases. Although the applicant may file a new asylum application, he or she is subject to the prohibitions on filing for asylum outlined in INA Section 208(a)(2)(A), (B) or (C). At this time, the Service Centers are not equipped to receipt applications where RAPS shows a final disposition of the case. An applicant must, therefore, file directly with the Asylum Office having jurisdiction over his or her place of residence. Applications received at the Service Center are forwarded to the Asylum Office for processing.
Affirmative Asylum Procedures Manual (AAPM)

If either motion is approved, USCIS will typically request ICE to terminate the removal proceedings initiated upon the denial or referral to Court. After ICE terminates the removal proceedings, USCIS may grant the applicant their asylee status. If a person is able to terminate their removal proceedings, they can avoid the headache of going to the Immigration Court for another 2-3-year process. If you feel that USCIS denied your asylum case for an improper reason, due to circumstances beyond your control, or due to an inability to present evidence at the interview that could have helped prove your claim: call the office to schedule a consultation at 917-885-2261. We are happy to review your case and see what your best options are.

29 October 2020
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