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Asylum Law by Jessica Ramirez: Courts and Proceedings

Asylum Law Research Guide

Institutions Associated with Asylum & Immigration

U.S. DEPARTMENT OF HOMELAND SECURITY

The Department of Homeland Security is the primary agency responsible for matters pertaining to immigration and asylum.  In March of 2003, the Department of Homeland Security absorbed the Immigration and Naturalization Service and assumed its duties.  In doing so, it divided the enforcement and services functions into two separate and new agencies: Immigration and Customs Enforcement and Citizenship and Immigration Services.

The Immigration and Customs Enforcement is primarily responsible for immigration investigations, detention and removal of non-citizens, as well as customs investigations.  On the other hand, the Citizenship and Immigration Services handles adjudications.  It reviews petitions for immigrant visas, adjustment of status, naturalization and asylum and refugee applications. 

 

U.S. DEPARTMENT OF JUSTICE

Under the authority of the Department of Justice, the Attorney General of the United States is responsible for administering immigration law subject to the President’s supervision.  Beneath the Attorney General, the Executive Office for Immigration Review supervises the administrative immigration courts throughout the country that review of the adjudications of the Department of Homeland Security as well as cases going directly to the immigration court.  The Board of Immigration Appeals reviews decisions of individual immigration judges.

Courts

Alternatives to Asylum

There are alternatives to asylum that applicants can pursue to remain in the United States:

  • Withholding of Removal: is similar to asylum in many respects. You apply for withholding with the same form as asylum, and must establish a fear of persecution if returned to your country. If withholding is granted, you are given the right to remain and legally work in the United States. However, immigrants who are granted a withholding of removal cannot apply for legal permanent residence, nor can they leave the country without being barred from re-entry. Withholding of removal is often granted for immigrants who are not eligible for asylum, but have proven that their life may be in danger if they were forced to return to their home country.
  • Relief under the U.N. Convention Against Torture (CAT): unlike asylum and withholding, CAT relief does not require proof of “fear under persecution”. However, obtaining relief under CAT is extremely difficult, and only advisable if you have committed serious crimes while residing in the United States.

 

Source: My Attorney USA

Practice Manual

These manuals provide basic information regarding filing procedures, motions, hearings, forms, and other pertinent materials relating to the immigration proceedings.

Immigration Courts in the United States

IMMIGRATION COURTS

In the United States, there are 54 immigration courts, which are controlled and managed by the Department of Justice.  If the applicant is in removal/deportation proceedings, their case will be heard in one of these courts, and it is in these courts that the applicant has the best chance of beating deportation.  In many cases, the immigration judge has individual discretion to decide the case, as in waiver applications or cancellation of removal, and can consider many different factors in making a decision about deportation.  In other cases, the immigration judge is bound by law to decide the case and has little or no discretion, as in deportation based on criminal convictions, material support bars, and persecution bars.

If the applicant loses their case in the immigration court, they can file: (1) a motion to reopen – to have the immigration judge consider new evidence or a change in circumstances (90 day time limit, with special rules for applying after the 90 day time limit); (2) a motion to reconsider – to have the immigration judge reconsider his or her ruling based on an error of fact; or (3) an appeal to the Board of Immigration Appeals and have new judges look at their case (30 day time limit).

 

BOARD OF IMMIGRATION APPEALS

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws.   The BIA has been given nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges and by district directors of the Department of Homeland Security (DHS).  Generally, the BIA does not conduct courtroom proceedings - it decides appeals by conducting a paper review of cases.  On rare occasions, however, the BIA hears oral arguments of appealed cases, predominately at headquarters.

BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court.  Most BIA decisions are subject to judicial review in the federal courts.  If the BIA determines that the immigration court did not err in reaching their decision, then the applicant can file a motion to reopen and a motion to reconsider with the BIA, or appeal the BIA decision to one of the 11 federal courts of appeals.

 

FEDERAL COURTS OF APPEAL

The Federal Courts of Appeal review decisions by the Board of Immigration Appeals. Congress has restricted the jurisdiction of these courts in recent years making it more difficult for applicants to prevail. Nevertheless, this option should not be overlooked.  If the federal appeals court reverses a decision of the Board of Immigration Appeals, an applicant's case will be sent back to the Board of Immigrations Appeals. The Board of Immigration Appeals will then send the case back to the immigration court.

 

UNITED STATES SUPREME COURT

If the federal appeals court denies an applicant's case, the last and absolute final step is to apply for certiorari to the United States Supreme Court. Although the Supreme Court may not hear the case, the court may still reverse a federal appeals court decision if there were any apparent errors.

Source: Timothy Davis, Esq.

Asylum Adjudications

Steps in the Asylum Process

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