Can I Be Deported Before Filing Appeal on a Denied Asylum Case?

Applicants for asylum are protected from deportation during some, but not all of the appeal process.

Updated 5/20/2023

One common worry that asylum applicants have after United States Citizenship and Immigration Services (USCIS) denies their asylum application and refers the case to immigration court is "Does this mean I am illegally in the United States? If so, can I be deported while waiting for the immigration judge to decide my case or soon after the judge denies my application?"

Here, we'll provide both some reassurance and some cautions.

Asylum Applicants Are Protected From Deportation Through the B.I.A. Appeal

While your asylum application is pending before an immigration judge or the Board of Immigration Appeals (B.I.A.), you are automatically authorized to remain in the United States while you wait for a decision. You do not need to file any extra paperwork in order to prevent your deportation. Depending on timing, you might also qualify to apply for a work permit (employment authorization document or EAD).

Asylum Applicants Face a Risk of Deportation If the B.I.A. Denies the Appeal

If the B.I.A. denies your appeal and orders your removal, you are immediately subject to deportation. Although you have 30 days to file an appeal (called a petition for review) with the U.S. Court of Appeals, you may be deported from the United States during that 30-day period. It is, therefore, very important to file the petition for review with the federal Court of Appeals serving your region as soon as possible after the B.I.A. denies your appeal.

Once you have filed the petition for review with the Court of Appeals, you could still be deported at any time while that appeal is pending, unless you have also successfully requested what's called a "stay of removal."

The difficulty here is that it might not be in your best interest to seek a stay of removal right after filing a petition for review. Doing so can sometimes negatively affect you, such as by prompting the government to arrest you. It is, therefore, a good idea to work with an attorney to decide when to file a request for a stay of removal from the Court of Appeals.

In deciding whether to grant your request for a stay of removal, the Court of Appeals will consider various factors, such as whether the government opposes your request, whether you are likely to succeed on your asylum appeal, the hardship you would suffer if the stay were not granted, and whether the government or the public would suffer any hardship if you were to remain in the United States while your appeal is pending.

Getting Legal Help

If you are in removal proceedings and wish to avoid deportation, it is best to contact an licensed, competent, and experienced immigration attorney as soon as possible to discuss your potential options. The attorney can analyze the strength of your asylum case, gather documents and paperwork, draft legal arguments on your behalf, prepare any witnesses, appear with you in immigration court for your hearings, and strategize next steps after a denial.

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