Here’s a hopefully hypothetical scenario: You apply for asylum (or some other relief) in Immigration Court and the judge denies your case. What do you do?
The losing party in Immigration Court has the right to appeal to the Board of Immigration Appeals (BIA), which is a higher court that reviews the decision of the Immigration Judge (IJ) to determine whether the IJ made a mistake. If you “win” your appeal, the BIA will explain the IJ’s error and “remand” (send back) the case to the judge to issue a new decision.
Today, we’ll discuss how to evaluate your chances for success on appeal, how the appeals process works, and what happens if you win or lose the appeal.
When the IJ issues a decision, he should explain his reasoning, either orally or in writing. If you understand why the IJ denied your case, you will be better able to evaluate the chances for success on appeal.
In my mind, there are two broad categories of denials: Some cases are denied based on credibility (i.e., the judge did not believe you); in other cases, the judge believed you were telling the truth, but found that you did not qualify for asylum or other relief. A third (unlucky) category of denial is where the IJ found that you were lying and also determined that even if you were telling the truth, your case would still be denied.
The first category–a credibility denial–is usually more difficult to win on appeal. That’s because the BIA will never see you in person. They rely on the IJ’s observations of your demeanor and responsiveness. For this reason, the Board will generally defer to the judge’s credibility determination, and only reverse if there is clear error. That’s not to say that the IJs have free reign. They must explain their reasoning and why they have determined that the applicant is not credible. To overcome an adverse credibility determination, you often have to parse out the IJ’s findings and point to any errors between the testimony and evidence on the one had, and the judge’s conclusions, on the other. This can be quite tedious, and if there are not obvious errors, the BIA will often let the judge’s findings stand. While it is not impossible to get the BIA to reverse an IJ’s credibility determination, such appeals are less likely to succeed.
Cases where the IJ found the applicant credible and thus accepted that her story is true, but denied relief, have a better chance for success on appeal. That’s because the BIA can simply determine whether the IJ made the correct decision given the facts and the law. The Board generally does not defer to the IJ’s findings in such cases, and so if you can demonstrate that the IJ did not apply the law properly, the BIA should reverse (i.e., you win). This is not to say that such a case is easy to win; only that it is usually more likely to be successful than a case where the judge found that you were not telling the truth.
In terms of the process, the first step after a case is denied is to file Form EOIR-26, the Notice of Appeal. In this form, you briefly explain the reasons for the appeal. For example:
The Immigration Judge (IJ) found that I was credible. The IJ also found that I suffered harm rising to the level of persecution. However, the IJ found that there was no nexus to a protected ground. In fact, I was kidnapped, harmed, and threatened with death in Rwanda due to my political opinion (opposition to the government), imputed political opinion (my husband’s support for the opposition), and my ethnic group (Tutsi). My husband was also persecuted for similar reasons. Had the IJ properly weighed the evidence, he would have found that the harm I suffered was on account of my actual and imputed political opinion and my Tutsi ethnicity. Also, I face future persecution for these same reasons. I will submit a brief with additional detail, and I reserve the right to raise additional arguments in that brief.
Along with the form, you must include a copy of the judge’s decision and the filing fee ($110) or a fee waiver. The form instructions provide the mailing address and information about payment. Many Immigration Court cases have online filing for attorneys. If so, the EOIR-26 can be filed electronically.
It is very important that you file the EOIR-26 as soon as possible after the IJ’s decision. The form must be received by the BIA within 30 days of the judge’s decision. If the form is received after that time, it will be rejected and the judge’s decision will become final.
Once the EOIR-26 is filed, you will receive a receipt, indicating that the appeal is pending. If you have a work permit, you can renew the permit normally during the pendency of your appeal.
At some point–it may be in a few months, but more commonly, it will be in a year or two–you will receive a copy of the transcript and a briefing schedule. The transcript is a written copy of everything everyone said in Immigration Court. The briefing schedule will indicate that you have 21 days to file the brief, which is the written explanation of why the IJ’s decision is incorrect. You can ask for an additional 21 days to file the brief, but you cannot generally get an extension after that time. You can see a sample brief here.
After you file your brief, the DHS (the prosecutor) can file a reply brief. In many cases, DHS does not file a reply brief. If they do, you can file a response.
After another indeterminate wait, the BIA will issue a decision. Either they will reverse the IJ and remand the case with instructions for further consideration, or they will dismiss the appeal and the judge’s order will become final. In the latter case, you can file a petition for review in federal court. However, unless the federal court specifically “stays” (stops) your removal, DHS can deport you at this point. You can also no longer renew your work permit.
Finally, while it is not common, I should mention that if you win your case in Immigration Court, DHS can appeal.
BIA cases can be complex, and it is very helpful to have the assistance of a lawyer. While it is difficult to win at the BIA, it is possible, and if you feel that the Immigration Judge’s decision is improper, you can appeal and seek a better result.
Hi Jason,
We appreciate your continued support for us.
I would kindly ask you if you could confirm the amount of the filling fee for renewal of EAD and what to write in the memo description of the check?
In the new instruction I did not notice any required payment for biometrics as it was required before!
Thank you in advance!
You have to check this website: http://www.uscis.gov/g-1055?form=i-765. The fee varies whether you file online or whether this is a first time application or a renewal. For most people, renewing an EAD based on asylum pending is $520 if filed by mail or $470 if filed online. Take care, Jason
Hi Jason,
I trust all is well. I’m not sure if my lawyer is helping my situation. The IJ denied my asylum and we are going to appeal. However, I found out about it by checking online a week later on the EOIR website by myself which means we only have 3 weeks now. While I still have a pending I-130, my lawyer is stating that it is impossible for me to adjust my status in the US; I will have to leave the country for a consular appointment. I entered legally as a student and filed asylum within a month. Would you please advise if this is correct? Also, can we apply for a cancellation of removal so that I can focus on adjusting my status through marriage? The petition has been pending for 2 years.
First, you need to get the appeal filed on time. Otherwise, everything else will be more difficult. Second, it is strange that the lawyer did not inform you about the court decision, and this makes me suspicious about the lawyer (though it may be fine – maybe the lawyer was on vacation or had some other issue). At least I would want an explanation from the lawyer about what happened. In terms of the I-130, if you entered the US legally and married a US citizen, you would normally be able to adjust status (get your GC in the US), though there are circumstances where that is not possible. I wrote about this on August 8, 2018 and August 28, 2018, but you would need to have a lawyer review the specifics of the situation to know for sure. In your case, at a minimum, it sounds like the lawyer did not explain much to you, and so maybe you need to talk to another lawyer. Finally, whether you can apply for Cancellation depends on many factors – you would need to have 10+ years in the US before the court case is initiated (though there is an exception to this rule, if the Notice to Appear – the document you got when the court case began – is defective, meaning it does not indicate the day and time for the first court hearing), you would need to show that your US citizen or green card spouse, parent or child would suffer extreme hardship if you are deported, and you would need to show that you have good moral character. Again, you would need to talk to a lawyer about this to evaluate eligibility. In your situation, I think you need to get the appeal filed, and then maybe talk to a different lawyer for a second opinion about how to proceed. Take care, Jason
Hi Jason,
I applied for a travel document, how long does it usually take if biometrics weren’t needed? Also curious as an asylee is it considered travel parole or refugee document? Also would I need a passport to travel or as an asylee the travel document is sufficient?
Thanks so much!!
If you mean a Refugee Travel Document, that is usually taking more than a year. If you have a pending asylum case, you need Advance Parole and that also takes more than a year in most cases. You can try to expedite these, and I wrote about expediting in general on January 29, 2020. If you have an RTD, you should be able to use that instead of a passport, though not all countries accept it. For AP, you need to use your passport and the AP acts like a visa and allows you to re-enter the US. Take care, Jason
Hi Jason,
I’m following up your blog and helping us a lot.
15 years ago I applied asylum but due to family issues I returned back to my home country and this year got US visa and now I’m in US. Currently,
due to war undergoing in my country and political turmoil, I want to re-applying new asylum application, do you think they may give me 2nd chance and grant asylum? Please tell me more. Thanks
You can apply. Double check the Special Instructions on the I-589 web page at http://www.uscis.gov to be sure about where to file the case. Whether you have a good chance for success depends on the case, but certainly, you will need to explain why you left and returned to your country, and also how you lived there safely. You will also need to explain what changed that now makes it unsafe for you to return. This situation sounds a bit complicated and it may be a good idea to talk to a lawyer about the specifics of the case and how you will address these (and any other) issues. Take care, Jason
Hi Jason,
Thanks so much for helping us!!
@Jason/Adam,
After withdrawal of my asylum case and returned to my country, after 13 years, I got visa again and come to USA. Can I file new asylum application? Thanks
Do you mind me asking why you returned ?
And again, this example just shows that bad countries will always be bad…one simply has to seek asylum…sooner or later…
Family emergency
You can, though of course, you would need to explain the return trip, why you went, why you thought you would be safe, and what changed that you now need asylum again. Also, double check where you file the case. I think you file normally, but check the Special Instructions on the I-589 web page at http://www.uscis.gov just to be sure. You may need to file at the Asylum Vetting Center in Atlanta, GA. Take care, Jason
Hi Jason; hope you’re doing well; I have to apply for my green card(granted asylum last year) for question 49. Have you EVER received any type of military, paramilitary, or weapons training? I plan to answer NO. I had a hard time during my asylum process in regards to my mandatory military training(no weapon training or anything special; cleaning floor etc) but they questioned me for 7 hours for that. Do you think I would face any issue if I answer no to that question? Thanks
I would check “no,” circle the question, write “see cover letter,” and in the cover letter, explain what happened. Make sure it is consistent with what you said at the asylum interview. I think the main issue at this point is whether USCIS thinks you are trying to hide something. Obviously, the asylum office cleared you, but I think the better approach here is to flag the issue, so it appears that you are being as open and honest as possible. Take care, Jason
I have an asylum case in immigration court. My asylum was denied by uscis and referred to ij due to one year deadline ban. I filed asylum really late like 5 years after entry to usa. Now in immigration court, waiting for my master hearing. Is it possible a lawyer can ask ice or immigration judge to admins close the case and also let me renew work permit indefinately . Like the case is dormant but i can renew work permit. I pay taxes, i have business, i have kids, i own houses. Deportation will be detrimental to me. Can judge consider these humanitarian reasons and close the case and let me keep my work permit if my case cant be approved due to one year
You can try. You have to ask DHS (the prosecutor) first, and if they agree, then usually the judge will agree. However, they normally do not agree to admin closure and they prefer to dismiss, but maybe you can convince them. I wrote more about this issue on June 8, 2022. Take care, Jason
Hi Jason
What does case closed mean? There is no result yet. What should I do in this situation? Thank you
That can have different meanings. The case could be dismissed, meaning it is no longer in court and the case is done. Or it could be administratively closed, meaning the court case is still open, but the case has been removed from the schedule so there is no court date, and it will just remain pending until the court or you or DHS (the prosecutor) tried to return the case to the active docket. Take care, Jason
Hi Jason
Thank you for your reply. I was confused when I saw that the close rate in Los Angeles was as high as 74.9%. In this case, what should asylum applicants do? Should they just wait for it to be pending? Or can they go to court?
Assuming it is administratively closed (and not dismissed), you can file a motion seeking to put the case back on the docket. If you prefer that the case remain dormant, you can do nothing. I guess it all depends on the strength of the case and your goals. Take care, Jason
Sir i have pending asylum im on work permit my case is with Chicago asylum office. But now alsp im married to a woman whos also on pending asylum . And what if shes granted asylum before me. Shes from another home ( nepal) and im from another (india) but live in usa. So our asylum cases and reasons for asylum are different. If shes granted asylum before me cuz her case is with immigration court and final hearing is july 2024. Will i automatically be given asylee status. When she gets asylee status
If she wins asylum, she can file an I-730 form for you (available at http://www.uscis.gov) and that will give you asylum too. The process normally takes 1 to 2 years and you would not want to withdraw your own asylum case until you have asylum from her (otherwise, you could be sent to court and you will not be able to renew your work permit). She should be sure that your name is included on her I-589, and if not, she should file an amended I-589 with the court, so that if she wins, it will be easier to petition for you. Also, if she loses, you can try to expedite your case, as you could then help her if you win (but you would want to talk to a lawyer, as it is trickier if she has lost her case and appealed). Take care, Jason
Hello Jason and thank you for helping us. I have a question about your comment:
“Otherwise, you could be sent to court and you will not be able to renew your work permit”.
What is the reason that he can not renew the work permit when he is at the immigration court?
If the dependent has a work permit based on a pending case, but then withdraws that case before they have some lawful status to be here, they will become ineligible to renew the work permit (since there is no long an underlying asylum case, which is the basis for the work permit). That is why it is better to not withdraw an affirmative asylum case until you have status (the I-730 is approved, for example). If the person withdrew the case and got referred to court, they could file a new asylum application, wait 150 days, and then file for a new work permit, but once the affirmative asylum case is withdrawn, it is not possible to renew the work permit based on that case. Take care, Jason
Hi
I have applied for travel document to my wife with an expedite request, after six months today I checked online and found it denial ?
What will happen now ? Send a new request or will moved to normal request?
Thanks
You will have to get the paper denial to know the reason. It may be possible to appeal, but generally, it is better to file again. Once you know the reason for the denial, you can decide how to proceed. Take care, Jason
Jason, I had applied for asylum many years ago after overstaying my visa. Never have had a master hearing. It’s been years. Since I had applied for asylum, the political climate in my country has improved. Because of that if I want to withdraw my asylum claim and leave, do I need to withdraw it first and then wait for an answer? If I do it, how long does it take to hear back from the USCIS that my application was canceled? I read that their answer can take several months. Do they give a certain time to leave when they answer? I completely understand that I may or may not be admitted here again. My main concern is how can I withdraw without seeming as someone who made a frivolous asylum claim? Which I didn’t.
Also, what if I buy a ticket home and fly out of the United States airport without withdrawing my application and waiting several months? Will I be stopped when leaving at the airport and potentially taken into an additional interview with the immigration? Or taken to an immigration detention center in the United States? thank u
It sounds like your case is at the asylum office (and not in court). If so, the best bet is to leave and then file a request to withdraw with evidence that you have left the US. I wrote about this in more detail on December 7, 2022. If you try to withdraw before you leave, they could send you to Immigration Court, which will be a much bigger hassle. If you are already in court (I think not, but I was not sure since you mentioned the master hearing, which is only in court), you can file a motion for voluntary departure. It is better to get an answer on that motion before you leave the US, but again, this only applies to people in court. Regardless, there should be no issue leaving through the airport. Take care, Jason
Hi Jason,
After the completion of the interviews for the Afghan cases, will they utilize those officers to interview old cases? Because you mentioned before that the primary reason for hiring more officers was to address old cases.
Presumably those officers will now be available to do other cases, but what they are actually doing at this point, I do not know. Also, I was involved in a lobbying effort that resulted in an extra $34 million to help address the backlog. Now, we are trying to make sure that USCIS actually uses the money for old cases. We shall see what happens, but I hope to post about those efforts in the near future. Take care, Jason
They are people still stuck in Mexico…don’t they deserve to be helped first ? And get to us to apply asylum ?
I guess it would depend on the case, but I do not agree that anyone waiting at the border should have priority over those who have been waiting inside the US. Take care, Jason
They are in danger…interior asylum seekers are away from danger…right ?
It depends on the particular person. Also, many people here are waiting to reunite with family members who are back home, and who may be in danger. Take care, Jason
I am not trying to change your opinion because you are entitled to your opinion.
May I ask tho whether your opinion is a mainstream one in the immigration law community ?
Because I remember mainstream immigration advocacy groups like AILA and ASAP, they very much put defensive asylum applicants front and center…You are the only person that I know, is advocating for a prioritization of affirmative asylum seekers over any other group…Is your opinion a minority one in the immigration law community ? or the consensus ? how many in the immigration law community share your opinions ?
I think the mainstream position is to get more money for asylum in general – affirmative and defensive. However, since that is not happening, I think some additional resources need to go to long-waiting affirmative cases. I also think that the border is being used as a recruiting tool for the Trump campaign, and we need to get that under better control to try to reduce the chances of a Trump win this November. Take care, Jason
I heard that the Manhattan branch of the Newark AO has jurisdiction over Manhattan and the Bronx. How is their approval rate? I plan to move to Manhattan from Brooklyn after getting my EAD (so the clock won’t stop), to get away from the Bethpage AO.
The NYC asylum office is the worst in the US. I wrote about that on December 6, 2023. Newark is much better – I posted data about that on July 13, 2022. However, whether your case will be in NY or NJ depends on your zip code. You can check that if you follow the link under Resources called Asylum Office Locator. Take care, Jason
Hello Jason
The IJ granted me CAT withholding and found me credible
I appealed the decision to the BIA
Can i still get the advantages of CAT like medical insurance?
Or i should wait for the BIA decision?
Thank you
If the case is on appeal, you do not have a final order and so you do not actually have CAT at this time. You still have asylum pending (assuming you also filed for asylum). Also, I am not sure that there are any real benefits to having CAT, since that is a deportation order which has been “withheld” as to your home country. In other words, I would double check whether you are, in fact, eligible for any benefits like medical insurance even if you have a final order for CAT. Take care, Jason
Ok So now the CAT withholding is not final because i appealed
Should i renew my EAD?
Or i should also wait for the appeal?
If you need to renew the EAD while the case is at the BIA, you would file under the same category as your old EAD card. I would file that before the old card expires, so you can benefit from the automatic extension. Take care, Jason
Hi jason, i am 66 years old and recently got asylee status(last month). Can i apply for refugee travel document before i apply for green card? And also do i have to re apply after 1 time entry?
If you have asylum, you can apply for the RTD immediately (form I-131, available at http://www.uscis.gov). Unfortunately, it probably takes 1+ years to get the RTD. You can try to expedite that process – I wrote about expediting in general on January 29, 2020. Once you have the RTD, it is valid for one year and you can use it to re-enter the US as many times as needed during the period that one year. Take care, Jason
Hello Jason
I want to travel to Punta Cana, I have 512T travel document. Am I eligible to travel to punta Cana and return to USA?
I am not sure what the 512T document is. If it is Advance Parole based on TPS, then you can use that document to re-enter the US as long as it is valid. You will also need a valid passport to travel to a foreign country. AP is only a document to let you re-enter the US; it cannot be used like a passport. Take care, Jason
I may make some feel unhappy but …
I want to ask…I am a little shocked (but not really) to find out that you said that immigration advocates “expanded asylum” and you think it contributed to the chaos at the border…and it sounds like you don’t particularly like that…
Am I describing it accurately ?
I have written about this before. See my post on January 11, 2022. Take care, Jason
Do you mind if I ask…is money part of the calculation behind that stance ?
Because the affirmative asylum seekers form the majority of your client base, and they do have better paying ability, vs defensive asylum seekers…so you frequently take the position that is…in favor of affirmative asylum seekers, and … at the cost of other groups ?
Or do you really feel that the defensive asylum seekers and/or those who need to pass credible fear interview to be allowed to seek asylum in the interior…are less deserving of asylum compared to affirmative ones ? Because I feel that, a considerable (I changed from majority to considerable) amount of affirmative asylum seekers, their journey in the U.S. start with 2 lies, first, they lied to visa officers to obtain nonimmigrant visas…and then, they lied to CBP to gain admission…In my opinion, these people are worse in terms of morality than people at the southern border who are not qualified for asylum (but who seeks entry)…And I suspect these two groups are probably comparable in numbers…so I really don’t believe one would truly believe that defensive asylum seekers are less deserving of asylum compared to affirmative asylum seekers…of course it’s just my opinion after all…but those are based on my observation…
I did read that article, and it’s not very convincing and if you don’t mind…feels pretextual to me…
I think a few in the comments also disagreed with you, including a former IJ…
I also want to reassure that, no matter what your answer is, I do not judge…I am taught to be accepting and tolerating and people are supposed to hold whichever position for any reason or no reason…that’s their freedom…so I wish I could get a sincere explanation here…
I don’t really have much more to say on the matter than I have already written, so I am sorry that did not suffice. Take care, Jason
Should I be worried he will be convicted…
I remember @Jason once wrote about how asylum seekers could help in the election…
I want to ask, would asylum seekers’ activity be retributed should he-who-must-not-be-named be re-elected ? I mean if he sees…oh…you worked against my re-election campaign, okay, I will specifically direct DHS to remove you. We all know that he likes to target people who oppose him and is extremely vengeful…
I doubt low level volunteers will be known to anyone or targeted. Take care, Jason
However, some judges, like Immigration Judge John P. Burns of the NYC Immigration Court (290 Broadway), deny cases 100% regardless of the circumstances.
If you have such a judge, it is best to try to move and get a new judge. I wrote about this on December 21, 2022. Take care, Jason
I am still baffled by the rule that the asylum applicant needs to testify themselves…To me, it’s like a second trauma because they are forced to recount their experiences…
Is it really absolutely necessary for asylum applicant to … testify … themselves ? It cannot be true right ? what if somebody is dumb, aka lost the ability to speak and not able to testify ? What do lawyers do if the asylum applicant themselves does all the talking with the prosecutor and immigration judge ?
A person is not required to testify about the harm they suffered, but if they do not, it is much harder to win asylum. If there are traumatic events, it is possible to testify in a way that is more sensitive to the applicant, but in many cases, it is not possible to avoid discussing these issues if you want asylum. Take care, Jason
Hello Mr Jason. Im Preet. Im an asylum seeker with case in california . My. Case is with uscis. I have ead work permit valid for 2 years from uscis. Today i heard uscis re extended 540 days extensions for renewals for eads. I have a few questions.
1) Im planning to move to new york state or indiana. Will their dmv or bmv accept renewal receipt with 540 days or even 180 days and will transfer my out of state driver license. My license is commercial cdl license for big 18 wheelers not normal car license. I heard all states dmvs accept i-765 180 days or 540 days renewal notice.
2) how many months can i apply my work permit renewal my work permit expires in 9 months. Can i apply now ?
3) will changing addresses: asylum offices depending on move either chicago office ( indiana) or new york office have any effect on my ead clock does ead clock exost anymore since i already have ead.
Btw i already changed my address once but within same asylum office juriscdtion by uscis online. I did all this after i had my ead in hand.
1 – I do not know, but they should. The EAD receipt means that your work permit is still valid, but to get that, you must file form I-765 before the current card expires. It seems that USCIS reduced the extension period to 180 days, but now they have increased it again and I think for people filing now, they will get a 540-day extension. 2 – The earliest you can file to renew is 180 days before the current card expires. 3 – No. Once you have the work permit, moving has no effect. Take care, Jason
Hi,
I have my green card from asylum. We’re planning to go on a cruise this July to Bahamas and back. I’m told a valid green card and a valid passport should be sufficient to return back to the US. I just want to check if this is accurate and what other documentation I require. I do not have a RTD and no time to get one either. Thanks
You should be fine as long as you have a valid passport (and maybe a visa to get into the Bahamas if you need that) and a valid green card to return to the US. Take care, Jason
Hi Jason
Today we received the granted decision letter from the court. One of the dependents first name has a spelling error ( 2 letters). Does it have any problem? How can it be corrected?
Thank you
Congrats on the good outcome! You might try contacting the judge’s clerk about the name and maybe they can correct it. I would call the clerk as soon as you can. You can find the phone number if you follow the link under Resources called Immigration Court. Make sure you know the judge’s name and your Alien number, so you can ask the receptionist to direct you to the judge’s clerk. Take care, Jason
Should the supreme court step in if the petition for review is denied in federal court ? Like can the asylum applicant appeal to supreme court if they are denied by 4th circuit ?
They can try, but it is very rare for the Supreme Court to get involved in an asylum case. It does happen a few times a year, though, so it is not impossible. Take care, Jason