Several U.S. governmental agencies are involved in deciding asylum claims and immigration benefits. Each of those agencies functions independently and separately, and each has a unique function. It is important that you file your application with the appropriate agency. You (ideally with the help of an attorney) will need to become familiar with the filing, timing, and procedural requirements of the agency handling your claim.
One or more government agencies can become involved in handling your asylum case, depending on:
The main agencies involved in processing asylum claims are:
Note that the Immigration and Naturalization Service (“INS”), which used to handle asylum cases, ceased to exist in 2003. Its authority was transferred to the Department of Homeland Security (“DHS”), which includes (1) USCIS, which is responsible for adjudicating all applications for immigration benefits and affirmative asylum applications; (2) Immigration and Customs Enforcement (“ICE”), which is responsible for overseeing detention and release of immigrants; and (3) Customs and Border Protection (“CBP”), which handles entry and security at U.S borders and ports of entry.
USCIS processes immigrant visa petitions, asylum and refugee applications, lawful permanent resident (“LPR” or green card) applications, and naturalization petitions. The agency has local offices in various locations throughout the United States, including some offices that are solely dedicated to hearing asylum cases.
If you are not in detention or in immigration court proceedings, you must file your asylum application “affirmatively” -- which basically means that you are the one to start the process with USCIS. You can do this whether you came to the United States legally or illegally. You would mail your application to the USCIS office with jurisdiction over your state of residence.
After you file your affirmative asylum application, you will be interviewed by an Asylum Officer at a local USCIS office. The officer can grant or deny your asylum claim. If you appear to have no legal status in the U.S., then instead of denying your case, the officer will refer you to the Immigration Court for removal proceedings.
A year after your grant of asylum, you will be able to obtain a green card by applying for lawful permanent resident (“LPR”) status with USCIS. Your green card will specify your starting U.S. residence date as a year before your LPR application was actually approved. Five years after the official start of your LPR status, you will be able to apply for naturalization with USCIS. So, in effect, because one year of your asylee status is counted towards your LPR status (known as “rollback”), you will have to wait four years after your green card is approved before you can apply for naturalization.
Immigration Courts are staffed by Immigration Judges, and are part of the Executive Office for Immigration Review (“EOIR”), which is within the Department of Justice. They are administrative courts, separate from both the federal and the state courts. Your asylum case will start out in, and be decided by, the Immigration Court if:
There are more than 50 Immigration Courts throughout the United States, in all major areas, and each Court has several Immigration Judges. Some Immigration Courts are located inside detention centers to conduct asylum hearings for asylum applicants who have been detained after an arrest by DHS.
Your hearings will be conducted by a single Immigration Judge, to whom you will be randomly assigned. Immigration Courts do not have juries. However, a government attorney will appear before the Judge at each of your hearings. The attorney will likely cross examine you and argue that you should be removed from the United States.
When your asylum case first gets processed through the Immigration Court, you will receive a Notice to Appear, specifying the date for the Master Calendar Hearing. At the Master Calendar Hearing, which lasts several minutes, you will tell the Judge whether you are removable from the U.S. or have a right to stay here, and what types of relief you would like to apply for (asylum, withholding of removal, protection under the U.N. Convention Against Torture, and/or voluntary departure).
The Judge will also set a date for your Individual Merits Hearing, and a date by which you must submit your asylum application (if this is the first time you are requesting asylum). You will present your arguments as to why you should be granted asylum (and any other forms of relief you applied for) during the Individual Merits Hearings.
The Judge will then grant or deny your asylum claim. If the Judge denies the claim, you will be ordered removed (deported). Both you and the government attorney can appeal the decision of the Immigration Judge, as described next.
The Board of Immigration Appeals (“BIA”) is an administrative appellate body, within the Executive Office for Immigration Review, which is a part of the Department of Justice. If asked by you or the government attorney, the BIA can review decisions of any Immigration Court and some decisions of the USCIS. Yes, that means that even if the Judge grants your case, DHS could appeal it to the BIA. Fortunately, DHS seldom appeals asylum grants. More often, the asylum applicant is the one who appeals to the BIA, after a denial by the Immigration Judge.
The BIA is located in Falls Church, Virginia, and has up to 15 members. The BIA normally reaches its decisions by a single board member, although, under special circumstances, a three-member panel decides appeals. Generally, the BIA does not conduct courtroom hearings. Instead, it decides appeals after reading the briefs submitted by you and by the government attorney.
Appeals do not happen automatically. Instead, either you or the government attorney must start the process by filing the Notice of Appeal with the BIA. The BIA must receive this within 30 days of the date when the Immigration Judge issues a decision on your asylum claim. The BIA will then set dates for you and the government to file briefs (written arguments). Typically, you will not be able to submit new evidence as to why you are entitled to asylum. Instead you will have to focus on an error that you think the Immigration Judge had committed, or describe why the proceedings were unfair.
After you and the government attorney file briefs, the BIA will either grant your asylum or deny it, or remand your asylum case to the Immigration Court (send it back with instruction on how to correct the errors in its decision and issue a better one). The process takes between several months and a few years. You can remain in the United States while your asylum case is being appealed.
The United States Courts of Appeals are mid-level appellate courts of the federal court system, divided into 13 Circuits, (which are actually numbered 1 through 13). Each Circuit (other than the DC Circuit) encompasses several U.S. states.
If the BIA denies your asylum claim, you can petition for review in the Circuit Court of Appeals in the Circuit in which you live. You will need to have specific grounds for appealing from the BIA, such as if the BIA committed errors. You cannot appeal the BIA’s decision simply because you do not like the fact that it denied your asylum claim. The Circuit Court will not rehear your entire asylum case. Instead, it will review aspects of the BIA decision that you think were wrong or unfair.
If you win the case in a Circuit Court, your asylum case will be remanded (sent back) to the BIA. If you lose the appeal, you will be removed from the United States.