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.

Question

United States Citizenship and Immigration Services (USCIS) denied my asylum application and referred my case to the Immigration Court. Does this mean I am illegally in the United States? I am worried that I might be deported while waiting for the immigration judge to decide my case. Also, if the judge denies my application and I need to appeal, can the government deport me then?

Answer

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 U.S. while you wait for a decision. You do not need to file any extra paperwork in order to prevent your deportation.

However, 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 Court of Appeals as soon as possible after the BIA denies your appeal.

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

The difficulty here is that it may not be in your best interest to immediately seek a stay of removal 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 is 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.

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