How to Prepare an Asylum Application in Removal Proceedings
What you need to know if you're preparing to apply for asylum.
The first step in your contact with the Immigration Court system is that you will receive a written Notice to Appear, which will specify the date and place (usually at an Immigration Court, although sometimes at a DHS office) for your Master Calendar Hearing (“MCH”). You must attend your MCH - and at all subsequent hearings -- in person, even if your attorney “appears” (attends) as well. If you fail to appear at any of your hearings, the Judge might order you removed “in absentia” (removed from the U.S. due to your absence at a hearing).
The purpose of a MCH is to figure out the next steps in your asylum case, and to set dates for your submission of any documents and for your individual merits hearing. You will not be questioned about your story, and the Judge will not rule on your asylum case, during the MCH. For more details about MCHs, see "What Will Happen At Your Master Calendar Hearing."
How to Prepare Your Asylum Application and Additional Documents in Removal Proceedings
You will need to file several copies of your asylum application and/or supporting documents by the date the Judge sets during your MCH (usually 15 days before your Individual Merits Hearing):
- Original set AND one copy of all your asylum application documents (or amendments and/or new supplements, if you have already filed an asylum application), with (2) a certificate of service (“COS”) – to be sent or delivered to the Immigration Judge; and
- One copy of all your documents, with (2) a COS (described just below) -- to be provided to the DHS trial attorney.
A COS is a short form that states that you had provided the DHS trial attorney with a copy of your filing. It specifies the document name, the date on which you had sent it to DHS, at what address, and by what delivery means (regular mail or hand-delivery, for example) you sent it.
Remember that if this is the first time you are filing your Form I-589 Asylum Application, you must do so in “open court,” within one year of your arrival in the United States. That is, you will need to hand your application over to the Judge while he or she sits on the bench. See “How to Prepare Affirmative Asylum Application” for tips on preparing your I-589 Form, your declaration, and corroborating documents. (Note that, once you are in removal proceedings, you will file all documents with the Judge -- plus a copy with the DHS attorney. Do not send any documents to USCIS.)
If you have previously filed an asylum application, you will be able to file an “amended” (revised) I-589 Form, and any additional supporting documents or witness declarations.
A good attorney might improve your chances of obtaining asylum by filing a legal “brief” that discusses the applicable law and your facts, trying to persuade the Judge to grant you asylum. The legal brief (also called a “memorandum of law”) typically highlights the strongest parts of your claim, overcomes any negative information (such as potential asylum bars), and presents your documents in an effective manner.
You are not required to file a brief, but it can be helpful to your case -- particularly when you are facing unusual legal issues, such as having to overcome a bar to asylum or having missed the one-year deadline. You can also prepare the brief yourself. Another factor to consider when thinking about hiring an attorney is that an experienced immigration attorney might have worked in the past with the DHS attorney assigned to your case. He or she might be able to consult effectively with the DHS attorney to narrow down some of the issues in your case.
At a date specified by the Judge, you will also need to submit a Witness List, listing all of the witnesses you plan to call at your individual merits hearing. The witness list can include both experts knowledgeable about your country and fact witnesses who are familiar with your personal history.
What Will Happen at Your Individual Merits Hearing
If you had accepted expedited removal hearing schedule, the Merits Hearing will be scheduled within 180 days of when you first filed your asylum application (with USCIS or with the Immigration Court). If you waived expedited removal, your Merits Hearing will be scheduled in about a year after your MCH. See also “Timing of the Affirmative Asylum Application Process” for a discussion of how long it takes the Immigration Court to process and decide your asylum case.
Your Individual Merits Hearing will last several hours, and might even be scheduled for several separate hearings, depending on the amount of information you and the DHS trial attorney need to present.
If you have an attorney, he or she will first give an opening statement, summarizing for the Judge why you should be granted asylum. Then, you will be “sworn in” (you will promise to tell the truth), and your attorney will ask you about your story. Make sure to be honest, detailed, and consistent with your application. Also, if you do not understand something, tell your attorney or the Judge that.
The Judge will often jump in and ask you questions, too. When you are done telling your story, the DHS trial attorney will ask you questions about your asylum claim, and will try to test your “credibility” (your honesty and consistency). He or she might try to confuse you, and be aggressive. Do not be intimidated. That is the DHS trial attorney’s job. Again, if you are confused by a question, do not attempt to answer it. Instead, ask for it to be restated more clearly.
You will then have the opportunity to call your witnesses. You (or your attorney) will ask them questions, the Judge will often interrupt, and then the DHS attorney will cross-examine them.
The DHS attorney typically does not call witnesses, but instead focuses on challenging your credibility (testing how believable and honest you are) throughout the hearing.
If you have an attorney, he or she will make a short closing statement at the conclusion of your final hearing, summarizing for the Judge why you should receive asylum, and addressing any doubts the Judge appears to have about your story or your eligibility for asylum.
Usually, the Judge will grant or deny your asylum application orally, at the conclusion of your final Merits Hearing. Sometimes, however, the Judge will take several weeks to issue a written decision on your asylum case.
Either you or the DHS can appeal the decision of the Judge to the Board of Immigration Appeals, within 30 days of the Judge’s decision.