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ASYLUM APPEALS

Denial of Asylum

There are several levels of appeal from a denial of asylum.

• If your case was denied at the Asylum Office, there is an automatic appeal when the case is “referred” to the Immigration Court (EOIR).

• If your case is then denied by the Immigration Judge, you can appeal to the Board of Immigration Appeals (BIA), an administrative court within the U.S. Department of Justice.

• If you asylum denial is then affirmed by the BIA, you can appeal once more to the U.S. Court of Appeals, which in California, is within the Ninth Circuit Court of Appeals.

• From the Ninth Circuit of Appeals, one can file an appeal to the U.S. Supreme Court, but the percentage of cases taken by the highest court is very small and unless there are unique and compelling legal issues, it is probably a waste of time and money.

The Board of Immigration Appeals.

If you do not receive asylum from the Immigration Court, you can appeal that decision within 30 days to the Board of Immigration Appeals , or BIA. You will not be asked to testify again.

The appeal will be decided on the basis of legal papers your attorney submits. In those papers, your attorney will attempt to show that the Immigration Judge incorrectly decided your case.

On appeal, your attorney is limited to using the testimony and evidence that was presented at the Immigration Court to make her arguments. With a few exceptions, we cannot introduce new evidence on appeal. For this reason, it is very important to give all important documents to your attorney for the Immigration Court. Also, you cannot submit new testimony or facts to your story.

The BIA can either grant or deny your case. The BIA can also find that it does not have enough information to decide your case or that the Immigration Judge made such serious mistakes that it cannot decide your case. In these cases, the BIA will send your case back to the Immigration Court for additional proceedings.

Court of Appeals.

If the BIA denies your case, you can appeal within 30 days to the federal Court of Appeals.

Like the BIA, you will not be asked to testify again. The appeal will be decided on the basis of legal papers your attorney submits. In those papers, your attorney will attempt to show that the Immigration Judge incorrectly decided your case.

The Ninth Circuit may require oral argument from your attorney, but it does not hear oral argument in every case.

The Ninth Circuit can either grant or deny your case. The Ninth Circuit can also find that it does not have enough information to decide your case or that the Immigration Judge made such serious mistakes that it cannot decide your case. In these cases, the Ninth Circuit will send your case back to the BIA for additional proceedings.

More Information:

  • Types of Asylum Decisions (USCIS)
  • Board of Immigration Appeals (BIA)
  • Immigration Outline (U.S. Courts for the Ninth Circuit)
  • Asylum (Kerosky, Purves & Bogue LLP)