If your asylum case has been referred to the Immigration Court by U.S. Citizenship and Immigration Services (USCIS), the court will already have a copy of your asylum application and supporting materials. However, if you are requesting asylum for the first time in removal proceedings, you will have to file your asylum application in court. The following article describes the process for applying for asylum before an Immigration Judge (IJ).
The first step in your contact with the Immigration Court system is that you will receive a written Notice to Appear (NTA), which will specify the date and place (usually at an Immigration Court) for your Master Calendar Hearing (MCH).
You must attend your MCH—and at all subsequent hearings—in person, even if your attorney attends as well. If you fail to appear at any of your hearings, the Immigration Judge (IJ) might order you removed in absentia (deported 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 IJ will not rule on your asylum case during the MCH. For more details about MCHs, see What Will Happen At Your Master Calendar Hearing.
You will need to file your asylum application and supporting documents by the date the IJ sets during your MCH (normally at least 15 days before your Individual Merits Hearing):
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 that you sent it to DHS, at what address, and the method of delivery means (regular mail or hand-delivery, for example).
If this is the first time you are filing your Form I-589, you must do so within one year of your arrival in the United States (with limited exceptions).
You have several options for how to do so. You may either submit it at the court’s window in-person, by mail, or in open court. (In the latter case, you would literally hand your application over to the IJ at a court hearing. This was the only allowed filing procedure until 2016, when the Department of Justice issued a policy change memorandum.)
If you have previously filed an asylum application, you will be able to file an amended I-589 Form, and any additional supporting documents or witness declarations if you choose to do so. If this is the case, you should make sure that the information provided in Form I-589 is consistent with your previous submission. If there are inconsistencies, you should be sure to explain the reason, so that the IJ does not have a reason to doubt your credibility.
Although you will not be filing your Form I-589 with USCIS, How to Prepare Affirmative Asylum Application has helpful tips on preparing your I-589, your declaration, and corroborating documents.
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 Immigration 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 deadline specified by the IJ, you will also need to submit a Witness List, listing all of the people you plan to call to give testimony at your individual merits hearing, how long each person plans to testify, and what language the person will speak. The witness list can include both experts knowledgeable about your country and fact witnesses who are familiar with your personal history.
If you had accepted expedited removal hearing schedule, the your individual Merits Hearing will be scheduled as soon as possible and you will be given the next available hearing date, at least 14 days in the future. This date can vary from court to court depending upon the backlog of cases. If you waived expedited removal, you may have to wait several years for your Merits Hearing. See 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 IJ that.
The IJ 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 decision.