Preparing your asylum case
Law. Facts. Evidence.
To seek asylum in the United States, you are required to complete a form I-589 (link below). If you are living in Colorado, you will submit your form I-589 with your supporting evidence to the Houston Asylum Office. When it is reasonable and possible to provide evidence that supports your case, you must do so. Among immigration applications, nowhere is it more important to have an attorney to guide you in how to marshal the law, facts and evidence to prove your asylum case.
Asylum Application Processes: Affirmative and Defensive
Affirmative Asylum Application with the USCIS Asylum Office
If you are physically present in the United States and you have not been placed in removal proceedings (deportation proceedings), you may be eligible to submit an affirmative asylum application with the USCIS. The asylum seeker completes a form I-589 (application for Asylum and Withholding of Removal) and sends it, with copies of important supporting evidence, to the appropriate USCIS service center. Asylum seekers in Colorado send their application to the Houston Asylum Office.
It is important that your asyum application be truthful and well documented. False statements in the asylum application or submission of fraudulent documents have serious immigration consequences.
An experienced asylum lawyer will be a critical partner in preparing and fully documenting your asylum application. During the preparation of your asylum application, your asylum lawyer will advise you on the law of asylum and prepare you for your interview.
After receiving your completed application, the Houston Asylum Office will schedule a biometrics appointment and an interview. The interview will be held at the USCIS Denver field office in Centennial, Colorado. At the interview, you will have the opportunity to discuss the reasons you are afraid to return to your homeland with a trained asylum officer. If you do not speak English, you are required to bring your own interpreter. The asylum officer will mail you a decision several weeks to several months after your interview.
If the USCIS Asylum Office grants your asylum application, the decision it mails you will include an I-94 as proof of your asylee status. In a separate mailing, you will also receive a work permit. When asylum is granted, you begin your journey to United States citizenship.
What happens when the USCIS asylum office does NOT grant your case depends on your individual situation. Some people submit an I-589 application for asylum while they have another legal status in the United States (ie, foreign students). When the asylum officer decides to deny an asylum application and the applicant is in another legal status, the asylum office will send a Notice of Intent to Deny (NOID). The Notice of Intent to Deny will be a letter describing the reasons the asylum office intends to deny your case. You will be provided a short period of time to respond to the NOID. Your response is an attempt to overcome the asylum officer’s reasons for intending to deny your asylum claim. If your response to the NOID is successful, you will be granted asylum. If unsuccessful and you have maintained your legal status, you will normally be allowed to remain in the United States during your authorized period of stay.
Most people who apply for asylum either have no other status or their status expires during the asylum process. If that is your situation, when the asylum office does not grant your case, it “refers” your case to the immigration court. A Notice to Appear will be issued that charges you with being removable (deportable) from the United States and tells you when to appear at the immigration court. You will have another opportunity to present your asylum claim, this time to the immigration judge in immigration court.
Defensive Asylum Application before the Immigration Judge
If you have already been placed in removal proceedings before an immigration judge and you wish to apply for asylum, the process is referred to as a defensive asylum application. If asylum is granted, it will “defend” you from being removed or deported from the United States. The immigration judge also hears affirmative asylum cases referred from the USCIS Asylum Office. The immigration judge does not have jurisdiction to consider your asylum case until you are found to be subject to removal (deportation).
When the immigration judge has jurisdiction to hear your asylum claim, he or she also will consider your claim for protection under Withholding of Deportation and the Convention Against Torture. In presenting your case in immigration court, your asylum lawyer will certainly have you testify and may present other witnesses to support your case. Your other witnesses may include friends or family members who have personal knowledge of your life or psychologists and medical personnel who can help substantiate any claim of past physical abuse. Academics, who are experts on the conditions in your country, may also testify concerning the situation you would face if returned to your homeland. The immigration court supplies an interpreter if needed for either you or your witnesses. After a witness for your case (including yourself) has provided testimony by responding to questions posed by your lawyer, they will be subject to cross examination by the attorney who represents the Department of Homeland Security. Sometimes, the immigration judges also asks you a few questions. After the immigration judge has heard all the testimony and legal argument, he or she usually gives an oral decision that same day either granting or denying your asylum case.
A permanent digital recording is made of the complete hearing, including all the testimony, arguments made by the lawyers, and the oral decision of the immigration judge. If either side appeals the immigration judge’s decision, the digital recording will be transcribed and both sides will be provided with a copy of the transcript.
Appealing the Immigration Judge Decision
When the immigration judge rules on your asylum case, both you and the government may appeal the decision. If the decision is appealed, the immigration judge’s determination is not final. The appeal is brought before the Board of Immigration Appeals (BIA). Normally, the BIA will not consider any new evidence on appeal. It will make a decision based on “the record” that was created in your hearing before the immigration judge. After submitting a Notice of Appeal to the BIA, the BIA will have transcripts made from the digital recording, will mail copies of those transcripts to your immigration lawyer and will provide a deadline for your lawyer to submit a written brief. If, while your appeal is pending, there is a significant change in your situation or the situation in your country and you have new evidence, your immigration lawyer can submit a motion to remand. A motion to remand is a request for the BIA to send the case back to the immigration judge to hear and consider the new evidence.