Written by attorney C. C. Abbott

Immigration: The Asylum Interview and Hearing

An alien present in the United States can request asylum at any time to an inspection officer or any other INS official. When such a request is made, the alien is to be referred to an interview with an asylum officer.

The Refugee Act of 1980 created the asylum interview and hearing procedures that included the definition of refugee found in the 1967 Protocol. If the alien is over the age of fourteen, he can request asylum at any time until his physical departure from US. The undocumented alien can wait until a removal hearing and indicate his intention to be considered for asylum at that time or even wait until after the immigration judge has ruled with respect to his removal from the United States.

When an undocumented alien asks for asylum, the INA requires he be taken before an asylum officer who determines whether or not there exists a credible fear of persecution. If the asylum officer determines that it is not a valid claim, than if the alien is out of status, he is removed from the US. The alien is informed that he can have the officer’s decision reviewed by an Immigration Judge. (IJ) If the alien request to have the decision reviewed, USCIS will notify the IJ who is required to conduct a review within seven days after the date of determination by the asylum officer. The alien must have an opportunity to be heard and questioned by the IJ. The IJ can conduct the review in person, by telephone, or by video connection. If the alien is out of status, he will be detained by the USCIS pending the IJ’s review.

The IJ conducts an original review of the evidence to determine if the alien has a credible fear of persecution. If the IJ determines that the alien has a credible fear, he or she shall vacate the removal order issued by the asylum officer. If the IJ decides that the asylum officer was correct, then the judge must affirm the officer’s order and remand the case to the USCIS for execution of the removal order.

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