This is part 2 of a posting about what happens if the Asylum Office denies your affirmative application. Read part 1 here.
If the Asylum Office denies your asylum case and you are no longer “in status,” you will be referred to an Immigration Court. When you get the denial (which they politely call a Referral), it will contain a short letter with a (usually) boilerplate explanation about why the case was not granted. Along with the letter, you will receive a Notice to Appear (“NTA”), which explains why the U.S. government believes it can deport you. If you have dependent family members, each of them should also receive an NTA (assuming they are all out of status).
The NTA contains allegations and charges. The allegations usually begin, “(1) You are not a citizen or national of the United States; (2) You are a citizen and national of [your country]; (3) You entered the United States on [date and place],” and then they state why you are removable. Often, the alien is removable because she remained in the United States longer than permitted. Other times, the alien entered the U.S. unlawfully (without inspection) or fraudulently (using a fake passport, for example). Some people are removable due to criminal convictions or other immigration violations. Read the NTA and make sure all of the allegations are correct.
The NTA also contains one or more charges. The charges indicate the section of the law (the Immigration and Nationality Act or INA) that the government can use to deport you. One common charge is under INA § 237(a)(1)(B), where the person is removable for having “remained in the United States for a time longer then permitted.” Other charges could relate to an unlawful or fraudulent entry, or to a criminal conviction.
Finally, the NTA will tell you where to go to Immigration Court. Usually, these days, the NTA does not tell you when to go to court. Instead, it says, “TBD,” which means “To Be Determined.” If your court date is TBD, you will receive a notice in the mail with the date of your first hearing. It is important to keep your address updated with the Immigration Court. Use form EOIR-33, and don’t forget to send an extra copy to the DHS Office of the Chief Counsel (the prosecutor).
Also, you can call the Court phone system to check the status of your case and learn whether you have an upcoming hearing. The phone number is 800-898-7180. It is a computer; not a person. Once it answers, follow the instructions and enter your Alien number. After the computer spells your name and you confirm, you can push 1 for your next court date. I recommend you call once a week, just in case you don’t receive the written notice (if you miss your court date, the judge will likely order you deported).
The wait time for the first court date depends on the court and the judge—it could take a few weeks or a few months (or sometimes longer).
Once you are scheduled for court, you will be assigned a judge. The 800-number will tell you the name of your judge. You can learn more about your judge at TRAC Immigration (information is not available for newer judges).
The first hearing is called a Master Calendar Hearing (“MCH”). Many people attend that hearing, and you have to wait your turn. When it is your turn, if you have a lawyer, the Immigration Judge (“IJ”) will take “pleadings.” This is when you (through your attorney) admit or deny the allegations and charges in the NTA. After that, the IJ will usually schedule you for an Individual Hearing (also called a Merits Hearing).
If you do not have an attorney with you at the MCH, the IJ will usually give you a continuance to find an attorney. If that happens, you will be scheduled for another MCH. In generally, the IJs really want you to find a lawyer, as it makes their job easier and it significantly increases the likelihood that your case will be approved.
For most referred asylum applicants, the NTA is correct and the person will admit the allegations, concede the charges of removability, and request asylum, Withholding of Removal, and relief under the United Nations Convention Against Torture. However, in some cases, the NTA is not correct. Also, some applicants can seek other relief, such as Cancellation of Removal or adjustment of status based on a familial relationship (or something else). One job of the attorney is to explore what types of relief you might be eligible for.
Also, at the MCH, the IJ will ask you to designate a country of removal. In other words, the IJ wants to know where to send you if you lose your case. For most asylum applicants, we decline to designate a country of removal. The DHS attorney (the prosecutor) will usually designate the country of citizenship.
If you admit the allegations, concede the charge(s), and indicate what relief you are seeking, the IJ will usually schedule you for an Individual Hearing, which is your trial. If you decline to accept the first Individual Hearing date the IJ offers you, or if you take a continuance to find a lawyer, it could prevent you from obtaining a work permit (if you don’t already have one—if you already have a work permit, you do not need to worry about this). If you think this could be a problem in your case, ask your lawyer. If you do not have a lawyer, ask the IJ.
The wait time between the MCH and the Individual Hearing varies by court and by judge. It might be a few days or weeks (for a detained alien), or it could be several years. Supposedly, for asylum cases referred to Court under the new last-in, first-out system, IJs will be scheduling quick Individual Hearing dates. We’ll have to wait and see how that works out.
The Individual Hearing is your trial. It is where you present evidence, and where you and your witnesses testify. At the end of the Individual Hearing, the IJ will usually make a decision—give you asylum, give you some other type of relief, or order you deported. Sometimes, a case requires more than one Individual Hearing. Other times, the IJ will send the decision by mail.
If lose your Individual Hearing, you can appeal to the Board of Immigration Appeals (“BIA”). If you win your asylum case, DHS can appeal (thankfully, that is not so common). You do not appear in-person for the appeal. Instead, you (or hopefully, your lawyer) will submit a brief, and the BIA will read it and make a decision in your case. Either the BIA will dismiss the appeal, meaning the IJ’s decision was correct and will remain in force, or it can alter or reverse the IJ’s decision. In the latter instance, the case will normally be returned to the IJ to correct the error, and issue a new decision.
An appeal with the BIA typically takes about six months or a year, but it depends on the case.
If you lose at the BIA, you can file a Petition for Review with the appropriate federal appellate court, and if you lose there, you can try to go to the U.S. Supreme Court. Very, very few cases make it that far. Also, if you lose at the BIA, whether or not you go to federal court, you are no longer eligible for a work permit based on a pending asylum case, and you can be deported (typically, ICE will not deport someone with a pending federal case, but they have the legal authority to do so unless the federal court issues an order “staying” removal). For the vast majority of aliens, if you lose at the federal appellate level, that is the end of the line.
In my experience, it is a bit easier to win an asylum case in Immigration Court as compared to the Asylum Office. But it is much more difficult to win at the BIA, and even more difficult to win at the federal appellate level.
So this is the basic process that most cases follow if they are denied at the Asylum Office. There are some exceptions and different paths (most notably Motions to Reopen and/or Reconsider), but the majority of applicants will follow this process. If your case is rejected by the Asylum Office, it becomes even more important to have a lawyer assist you. If you can’t afford a lawyer, check this posting for some helpful resources. And remember, losing at the Asylum Office is frustrating and upsetting, but it is by no means the end of the road. Keep fighting, and hopefully, you will have a good result in the end.
[…] other lawful status in the U.S., the case will be referred to Immigration Court (I wrote about that here). If the dependent has no other status in the United States, he will be referred to court along […]
Dear Jason,
After my asylum case was referred to court ,my husband got visitor visa and came to USA.He wants to to apply his own asylum claim as he has been persecuted. My case is appointed to 10/2021 . Can he apply while my case is still pending ( he is included in my claim), does his application has any effect on my case? I also want to change my court from Charlotte to Arlington court is it possible? Can he apply employment authorization now? Thank you so much for your help.
If your husband was not a dependent in your case (meaning he submitted a signed page 9 of the I-589 and was fingerprinted) then he was not part of your case and he can file his own case now. If he wins, he can file an I-730 petition for you and you can probably close your court case and get asylum based on him. If your case is decided first, you can file an I-730 for him if you win. Your husband cannot apply for a work permit until 150 days after he files for asylum, or until he wins asylum (or gets asylum based on your I-730), whichever comes first. The only way to move a case in court is if you move your address and live within the jurisdiction of the new court. By the way, Charlotte is generally considered a very difficult court for asylum seekers, and so if you move to Arlington, or basically anywhere else, it may increase the likelihood of a good outcome. Take care, Jason
Thank you so much Jason for your response. You are a blessing for people like us. In my previous question I forgot to mention that he was included in my application when I filed my asylum but then he got the chance to come here by tourist visa. Can he still apply his own asylum even if his name is in my case?
Thank you again Jason!
If he was not in the US at the time you filed, or if you did not add him later to your case, he is not a dependent on your case, and he can file for asylum on his own. The fact that you mentioned him in your case does not matter. Take care, Jason
Hi Jason,
I have been referred to court. On the NTA I received, it says my MCH is 02/03/2020 but when I call the automated court number, it says 11/23? Which one should I follow?
Secondly, approximately how much does your firm charge to represent someone in court?
Thank you
Probably the date on the phone system is correct. They should also send you a written notice. If you are not sure, you can call the court and talk to the clerk – follow the link at right called Immigration Court and you will find the number. As for us, it depends on the case, but for most local cases, we charge about $6,000. Take care, Jason
Dear Jason,
Thank you for your good support all along, my decision came in the mail yesterday 13 months after the interview and it was truly devastating. I was heartbroken. A few things stood out and i would like to seek your opinion about those:
1. The NTA issued to me states: ” This notice is being issued after an asylum officer has found that the respondent has demonstrated a credible fear of persecution or
torture”. I guess my question is, how do you find me credible yet still send me to IJ?
2. The reason they denied was because ” You have not established that any harm you experienced in the past, considering incidents both
individually and cumulatively, amounts to persecution”.
3. How unusual it is for the IJ to make the decision at the first hearing?
4. You state in your article “If you admit the allegations, concede the charge(s),…..” my question, how do one concede to charges that are incorrect?
Once again, thank you for everything. God bless.
1 – I have not seen that phrase on an NTA, so I am not sure. 2 – Here, it sounds like the asylum office found you credible, but you still did not demonstrate that the harm you suffered amounted to past persecution. It could be that the harm was not bad enough. It could also be that the harm was bad enough, but was not “on account of” a protected ground (race, religion, nationality, political opinion or particular social group). Even if a person fails to demonstrate past persecution, they can still receive asylum of they show a well-founded fear of future persecution (again, that would have to be on account of a protected ground), and they did not find that you demonstrated that either. 3 – The first hearing is very brief and there is no decision. I wrote about that hearing above. 4 – You would not concede to charges that are incorrect. You would deny them and the DHS lawyer (the prosecutor) would have to prove them, or change them. One last point, I have seen many cases that were denied at the Asylum Office but were granted in Court, so you certainly should not lose hope. It is helpful that you were found credible (it is always worse if they think you are lying). However, you need to present the case properly, so it fits within the framework for asylum. If you do not have a lawyer, I strongly suggest you find someone to help you, as it greatly increases the chances for success in Court if you have a decent lawyer. Take care, Jason
Thank you very much for the swift response.
I was perplexed to see those two words next to each other- “found you credible yet harm experienced not amount to persecution”.
My case was on FGM ground and my kids were subjected to pre-FGM rites/customs, we only managed to survive by buying time because the kids’ exams were around the corner- we used that as a bargaining chip. My wife was actually a victim of FGM herself- we included a doctor’s from our country to prove that. We now planned to obtain another clinincal report from a US-based hospital. I have a few requests though:
1. Would you be willing to help take our case up or recommend a lawyer from that region? It will be heard in Chicago early next year.
2. How can one adequately prepare in this situation, we included a police report and support letters in prior submission.
3. Please can you avail me your office contact details
Regards
1 – I do not know a lawyer in Chicago, sorry. We could potentially do a case there, but you might do better to find a local lawyer, as that is cheaper. You can start at http://www.aila.org, as those lawyers tend to be better than others. 2 – It is hard to advise you when I do not know the case, but if your wife was a victim of FGM, she should be the principal applicant (or you should both be principal applicants – meaning you have each filed an I-589). Make sure you have a letter from a reputable doctor about her FGM. 3 – jdzubow@dzubowlaw.com. Take care, Jason
Hi Jason,
In addition to the questions above, is it possible for my wife (been FGM victim herself) to seek relief on under the United Nations Convention Against Torture.
She can, but you can only get Torture Convention relief before an immigration judge – not at the asylum office, and it may be difficult to get that, since you generally need to show state action or blind indifference to the torture (FGM) to get that relief. It is possible, though, depending on the case. Take care, Jason
Thank for your time Jason.
I left you a message inbox, kindly respond. It would to know what it entails to work with your office on this. To your point, no single soul has been brought to justice on the ground of FGM in my country and it’s a daily phenomenon. Our case is in immigration court already, we’ll see the Judge by February 2020.
Hi Jason,
I am tibetan i was activist in back nepal. i came to US with fake nepali pp. i lost my asylum case and now i have court master hearing on 4th of dec. my lawyer said this is fraud. do you think they ll return me in this or they ll punish me for doing fraud making fake pp and entering US.
please tell me I am very nervous.
dolma
There is a case called Matter of Pula, which basically says that a person can get asylum even if he uses a fake passport or fake documents to enter the US. The use of a fake passport is an issue you will need to explain in your case, and if you win your case, you will need to again explain it when you apply for a green card and citizenship, but it does not necessarily block you from winning asylum. Take care, Jason
Hi Jason,
I am tibetan i was activist in back nepal. i came to US with fake nepali pp. i lost my asylum case and now i have court master hearing on 4th of dec. my lawyer said this is fraud. do you think they ll return me in this or they ll punish me for doing fraud making fake pp and entering US.
please tell me I am very nervous.
dolma
There is a case called Matter of Pula, which basically says that a person can get asylum even if he uses a fake passport or fake documents to enter the US. The use of a fake passport is an issue you will need to explain in your case, and if you win your case, you will need to again explain it when you apply for a green card and citizenship, but it does not necessarily block you from winning asylum. Take care, Jason
[…] frightening. Here, we will discuss what to expect at that hearing. In prior posts, I discussed the Master Calendar Hearing, and how to prepare for the Individual […]
[…] detailed Notice of Intent to Deny letter. People who are out of status receive a much less detailed Referral letter. Since it takes more work to create a NOID, it makes sense that such cases takes longer. A […]
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There’s definately a great deal to learn about this issue.
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Hi Jason,
The immigration court rescheduled my individual hearing, I have been in this process since 2012 and I finally lost my sick father in November, 2018. I wasn’t able to visit him or attend his funeral. My mother is also old and having lots of medical conditions, with no good medical care in Afghanistan. I would like my mother to come visit me. I am afraid that the fact that I have a pending asylum here will only cause her to be rejected at the U.S embassy? How can I increase the chances of her being able to visit me? Do you think it would be helpful if I write a letter explaining my situation and the psychological effects the loss of my father has had over me. Any other options I could use to be able to see my mother? I would really appreciate any advice. Thank you, Jason!
I am sorry to hear this. Unfortunately, many people have a similar issue. She can apply for a visa. Your asylum case may make it harder for her to get a visa, but this problem is worse for spouses and children, and less bad for parents. You might talk to a lawyer who helps with tourist visas – generally, they will want her to have evidence of attachment to her country and show that she will return after her visit (property, other family members, job, etc). Also, you could try to get Advance Parole and visit her in a third country, like Dubai or Pakistan. I wrote about that on September 11, 2017. Good luck, Jason
Hi Maya,
I’m in exactly the same situation, I’ve been waiting since 2013 and my father passed away in 2018 as well. I understand that difficulty and I hope things get better eventually. As in for your mother, she should definitely try to apply for a visa. She should have a proof of income and residency at home, if she’s comitted to anything there then she should mention that. My mother was rejected twice, but applied a third time and literally just cried at the interview and said”I miss my daughter and just want to see her.” She lucked out that she had a sympathetic officer and she got her visa. Best of luck to you.
Thanks for this post and your help, Jason! I’ve been following you for years now it’s crazy, every step I think is the last something else comes up, and your blog keeps my sanity intact, so I can’t thank you enough.
I’m now in immigration court and plan to move to another state with my fiance in the next few months. Do you know if I have to move my case with me or if I can leave it where it is? I’m scared of my case possibly getting lost or being pushed back. I’ll still have access to my current address and my MCH is in 3 months.
Thanks again!
Unless the move is temporary and you keep your permanent address (like a college student who stilt uses her parents’ address), you need to inform then about the new address. You can ask to keep the case where it is, and that is up to the judge, but typically, if you move far away, the case will move too. I wrote a post which may be on point on June 24, 2015. Take care, Jason
Hi Jason,
I entered the US in 2011 in student visa (which expired in 2016) and am currently in TPS (since 2016). Can I apply to asylum if I have maintained valid status throughout my entire stay even though my last entry to the states was in 2015 (passed the 1 year deadline)?
Thanks
I believe TPS would serve as an excuse for the one-year bar. I wrote about this issue on January 18, 2018. Take care, Jason