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 on file. If, however, you are requesting asylum for the first time in removal proceedings, you will have to file your asylum application in court. This article describes the process for applying for asylum before an Immigration Judge (IJ).
We'll assume you've already attended Your Master Calendar Hearing (MCH). Its purpose is simply to figure out the next steps in your asylum case, and to set dates for submission of any documents and for the individual merits hearing.
If you haven't already submitted your asylum application on your own, you will need to do so by the date the IJ set during your MCH. Normally that's at least 15 days before the Individual Merits Hearing. Also, if this is the first time you're filing Form I-589, you must do so within one year of your arrival in the United States (with limited exceptions).
Your filings must include:
You have several options for how to file. You may either submit your application 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 permissible filing procedure until 2016, when the Department of Justice issued a policy change memorandum.)
If you have previously filed an asylum application, you can, if you wish to improve it, file an amended I-589 Form, as well as any additional supporting documents or witness declarations you would like the IJ to consider. Make sure the information provided in Form I-589 is consistent with your previous submission. If there are inconsistencies, be sure to explain the reason, so that the IJ does not doubt your credibility.
Although you will not be filing your Form I-589 with USCIS at this time, see How to Prepare Affirmative Asylum Application for 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,” which discusses the applicable law and your facts so as to persuade the Immigration Judge to grant you asylum. The legal brief (also called a “memorandum of law”) typically highlights the strongest parts of the claim, overcomes any negative information (such as potential asylum bars), and presents the documents in an effective manner.
Another factor to consider when thinking about hiring an attorney is that an experienced one 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 the issues.
At a deadline specified by the IJ, you will also need to submit a Witness List, naming all the people you plan to call to give testimony at your hearing, how long each person plans to testify, and in 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.
You cannot choose or request a particular judge. And wide disparity has, unfortunately, been reported in the percentage of asylum cases that different IJs grant.
To find out more, check out Syracuse University’s database of immigration judges. It lets you input your city and the name of your judge and see a report on the judge's background and the percentage of asylum cases that he or she has granted in given years, and how this compares to other judges across the United States.
If, at your MCH, you accepted an expedited removal hearing schedule, 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. (How far in the future depends on your court's 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.)
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 why the IJ should grant you asylum. Then, you will be “sworn in” (promise to tell the truth) and your attorney will ask you questions about your story, through a court-appointed interpreter if you are not comfortable in English. Make sure to be honest, detailed, and consistent with your answers. Also, if you do not understand something, tell your attorney or the IJ that. (Do not hold separate conversations with the interpreter.)
The IJ will likely 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” (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 stated more clearly.
You will then have the opportunity to call witnesses. You (or your attorney) will ask them questions, the IJ will interrupt, and the DHS attorney will cross-examine the witnesses.
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. The attorney will summarize for the judge why you should receive asylum and address any doubts the judge appears to have about the facts of your story or your eligibility for asylum.
Ordinarily, the IJ 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 an 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.