Peter J Loughlin Esq

What Happens If Your Asylum Case is Denied?

If an asylum case is denied, many people fear that they will be deported immediately. That is not the case. Once the immigration judge denies a claim for asylum, the respondent (person claiming asylum) is given 30 days to file an appeal with the Board of Immigration Appeals (BIA) in Falls Church, Virginia. During the 30 day period, and the time it takes for the BIA to make a decision, the respondent is protected from being deported (or removed, as the immigration order would read).

It is not necessary to appear in person before the board, although personal appearance may be requested by the respondent. The appeal is processed in two parts: first, the court is notified of the appeal. This is done by completing form EOIR-26. The form must be received at the appeals court no later than the thirtieth day from the date of the Immigration Judge’s order, so be sure to send the form in a manner that can be tracked. Along with this form, you should also mail a check made payable to the US Department of Justice in the amount of $110 for the filing fee, or complete and send Form EOIR-26A, which is a fee waiver request. The court will also need to receive a copy of the immigration court order, and if respondent is represented by counsel, Form EOIR-27.

The second part of the appeal will take place in approximately two months, when a transcript of the Individual Hearing is mailed to the respondent or attorney, with a notice that a legal brief will be due in approximately three weeks. You will receive the transcript and request for a brief only if you indicated on the Notice of Appeal (Form 26) that you intend to file a brief. It is strongly suggested that you have an attorney handle your appeal, and in particular, to write the brief. A legal brief is a document which states the facts and points of law concerning your case. It is a vital part of the appeal process as it gives the respondent the opportunity to discuss particular errors the immigration court may have made.

Our experience at Goldman & Loughlin, is that it takes about 9 months to a year for the court to render a decision. Again, if the court denies the appeal, the respondent has the opportunity to file another appeal with the Circuit Court of Appeals or even to the US Supreme Court. However, from a practical standpoint, this is not done in most cases due to costs and the strict requirements to be eligible for relief in the federal courts.

If the appeal is dismissed and no appeal is made within 30 days, the respondent is expected to leave the United States.

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