Timing of Applying for Asylum in Removal Proceedings

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The process of filing a “defensive” asylum application in removal proceedings in Immigration Court moves rather quickly. You can find yourself applying for asylum in removal in the following circumstances:

  • You passed your credible interview at the border, while entering the U.S.
  • You filed an affirmative asylum application and the Asylum Office referred your application to the Immigration Court; or
  • You were picked up and detained, without having ever applied for asylum before.

Regardless of why you ended up applying for asylum in removal proceedings, the timing from this point on is similar.

Remember that you must apply for asylum within one year of your last entry into the United States. (If you are in removal proceedings because you were referred to the Immigration Court by an Asylum Officer, you will not need to file a new asylum application, although you will have an opportunity to file an amended one or additional documentation to support your case.)

Here’s an overview of how the process usually works.

Timing of the Master Calendar Hearing

You will first receive a Notice to Appear that informs you of the time and place of your first Master Calendar Hearing (“MCH”). At your first MCH, the Judge will ask you whether you accept expedited removal. Expedited removal scheduling will shorten all of your court deadlines (for both documentary submissions and hearing dates). It will not affect how your application is processed or your chances of obtaining asylum (as long as you have enough time to prepare your case well).

The Judge will also set a deadline for you to submit your asylum application (if you have not done so already) and any revisions to your application or additional information.

Under expedited removal scheduling, the Judge will try to issue a decision in your case within 120 days of receiving your asylum application if you had filed it for the first time with the Judge (that is, if you are detained after having passed your credible fear interview at the border or having been arrested). If your case were referred to the Immigration Court from an Asylum Office, the Judge will try to schedule your merits hearing within 180 days of when you first filed your asylum application. However, given that the government attorney or the Judge often need to reschedule hearing dates, and that you might have a lot of evidence to present at your merits hearings, the process typically will last longer than those deadlines.

If you waive expedited removal, your individual merits hearing will be scheduled for about a year after your MCH, although that can vary, depending on what Immigration Court you are in and what Immigration Judge was assigned to your case.

You might have several MCHs, especially if you ask for a continuance (a rescheduled hearing to a later date) in order to find an attorney.

For details about master calendar hearings, see “What Will Happen at Your Master Calendar Hearing.”

Scheduling Your Individual Merits Hearing

Even under expedited removal, the Judge will likely not schedule your first merits hearing until 14 days after your last MCH. You will present your evidence and witnesses during your merits hearing.

Your merits hearing can carry over for more than one court date, depending on how much evidence or how many witnesses you present, how active the government attorney is, and the Judge’s schedule.

For a detailed description of how to prepare your asylum application in removal, and about what will happen at your merits hearing, see “How to Prepare an Asylum Application in Removal Proceedings.”

At the end of your (final) merits hearing, the Judge may orally grant or deny your asylum claim. Alternatively, the Judge may issue a written decision, typically within several weeks after your merits hearings conclude.

How Long the Appeal Process Takes

You can appeal a denial decision to the Board of Immigration Appeals (“BIA”). In order to do so, you must file your Notice of Appeal within 30 days of the Judge’s decision. The U.S. government can also appeal your grant of asylum.

The BIA might take a year or more to rule on your appeal. While your case is on appeal, your asylum application decision is not final. Therefore, you will not be able to petition for your family to join you (through derivative asylum process), and you will not be eligible for any benefits provided to asylees (such as financial assistance).

If the BIA denies your case, you may wish to appeal to the Circuit Court of Appeals. This will add another few years to the process. You can even eventually try to appeal a denial to the U.S. Supreme Court!

 

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