Best Strategies in the Event of Denial in Asylum
It is important to plan an appropriate strategy in the event the case is not successful because the risk of harm upon return is so high. I believe in perseverance. John Lennon said, “In the end, it’s going to be okay. If it’s not okay, it’s not the end.”
A Different Type of ProtectionAn Immigration Judge can also rule on whether the foreign national is eligible for withholding of removal and protection under the Convention Against Torture. Unlike asylum, withholding of removal or relief under the CAT does not confer a path to lawful permanent resident status or U.S. citizenship. Travel permission is also not granted. An applicant only receives work authorization while in the U.S. If any other country is willing to accept the person, she can be deported there.
A person who submitted an asylum application late is also eligible for withholding of removal because that type of relief has NO deadline.
Appeal of Asylum CaseForeign nationals have a mere THIRTY DAYS to appeal an Immigration Judge's denial to the Board of Immigration Appeals. Before considering whether to appeal the case, discuss the facts thoroughly with an experienced and honest immigration attorney. For example, I rarely will appeal a case if the Immigration Judge ruled that the applicant lacked credibility. Those appeals rarely win. The better use of the client's money and energy would be spent on seeking another avenue of relief for the client.
An appeal does not require gathering additional evidence. In fact, submitting additional evidence is frowned upon. The appeal requires a properly written legal argument as to why the applicant was eligible for asylum based on the law. In most cases - to the surprise of the foreign nationals - winning the appeal means only that they will face the same Immigration Judge. I won an appeal before the Board, returned to the same IJ who denied the case previously with another immigration attorney and - after several hearings - won the case.
Federal CourtWhen planning the strategy, remember that the Board denies more appeals than it approves. A foreigner who fears she will be harmed upon return must be prepared to appeal to the next level: the federal court. Such was the case of a gay HIV-positive Venezuelan whose case was denied both by an Immigration Judge and by the Board. The IJ and the Board did not believe that he was a member of a particular social group. When he appealed to the federal court, he won and was allowed to stay.
Most immigration attorneys do not appeal to the federal courts because there are specific procedures and rules that practitioners must follow in those cases. Not everyone knows how to practice in this difficult area. The author has filed federal court appeals and made successful oral argument to the Eleventh Circuit Court of Appeals.
Federal courts can also review the issue of the one-year deadline. In other words, if Immigration and the Board denied asylum to a foreigner because of the deadline, she can argue this issue again on appeal to a federal court.
Winning With Another CaseAn asylum applicant should not put all her eggs in one basket. She will apply for a green card in every manner legally available. I encourage her to do this, so long as she understands the consequence of multiple filings.
It is wise to assume that information given in the employment-based case submitted to Immigration will be available to the Immigration Officer who decides the asylum case. For this reason, an experienced immigration attorney will review all the documents submitted with business visa applications and employer petitions. For example, an asylum applicant might claim that she went into hiding due to an attack in October, but the resume she provided for her work visa states that she kept the same job from June through December. That might be a lethal inconsistency because if she was so afraid in October, how could she continue going to work as if nothing had happened? Continuing to appear in a place where her enemies could easily find her might show that she did not actually fear them. I ensure that such case-killing contradictions either do not exist or can be explained appropriately. After all, maybe after the attack in October she worked remotely from home.
My second favorite John Lennon quote is "Life is what happens while you're busy making other plans." Sometimes, while planning never to return to a homeland, foreign nationals fall in love and marry United States citizens. Foreign nationals with legal status should withdraw their asylum applications after they receive a green card based on marriage to a U.S. citizen.
But U.S. citizens do not have the monopoly on romance. In one case, a Muslim woman applied for asylum specifically after she married an Orthodox Christian in the United States. Her own family would have killed her if she returned to Turkey. Her husband was the one without status; after approval, he also obtained asylee benefits.
If the foreign national marries after the case has been referred to an Immigration Judge, the couple must demonstrate by clear and convincing evidence that the marriage was not entered into for immigration purposes.
Cancellation of Removal is a defense strategy for those persons in deportation proceedings before an Immigration Judge. If the deportation would cause extreme and exceptional hardship to a U.S. citizen or legal permanent resident spouse, parent or children, the foreign national will not be deported. Instead, the order of the Immigration Judge granting the case establishes that the foreigner is a legal permanent resident.
Asylum applicants can rarely apply for cancellation of removal because the foreign national must have lived in the United States for at least ten years to apply. That is far beyond the one-year deadline to apply for relief based on asylum. Some persons, however, who are applying for asylum based on recent changed circumstances, may be eligible for BOTH cases.