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Appeals Or Motions To Reopen And Reconsider In Asylum Cases And Judicial Review

Many asylee clients complain of not being fairly considered by the asylum office of
Immigration. A rush to judgment by an asylum officer denying a claim is not infrequent. Asylum seekers often end up with a bewildering lack of comprehension because of a capricious or arbitrary examiner. What can one do in this situation?
A refugee is a person outside his/her country of nationality who has a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group or of a particular political opinion, and as a result is not protected by their country. Forced abortion, involuntary sterilization or other coercive population control programs are in this category.


The asylum hearing is conducted by an asylum officer who will review the application.
The quality of inquiring officers vary: some are sympathetic and versed in international law; others are curt and opinionated and appear to have made up their minds even before they hear the testimony. A frivolous application will be denied. The testimony of an applicant will be held in confidence. The interview must be held in a non-adversarial manner. If the application is denied, an Administrative Appeal may be filed.


An appeal from a denial of an asylum application may be submitted to the Administrative Appeals office. The applicant’s testimony at the asylum interview will be transcribed and forwarded to the Appeals office. The Appeals office may grant, deny or refer the case to an Immigration Judge. The Administrative Appeals office’s decision must be written and contain a credibility assessment.


An Immigration Judge will fully rehear an asylum claim both: the original application and the written evidence presented and the Judge will hear the testimony of the asylee applicant and his/her witnesses. A trial attorney from the Chief Office of the District Counsel will attend to cross- examine the applicant witnesses. The Judge has the power to grant asylum or deny. Immigration Judges are accustomed to hear the asylum evidence impartially, and/or review the Administrative Appeals Officer’s decision (AO). The Judge may concur with the AO and return the case to Immigration & Customs Enforcement (ICE) or grant asylum based on the Judge’s belief of a reasonable fear. A Judge will normally bar an asylum claim if made more than one year after the applicant’s entry into the U.S. unless the applicant is a child or has a believable explanation for the late filing. If an applicant resettled in a third country, the Judge will normally deny the application.


An applicant denied asylum by a Judge may make a Motion to Reopen and Reconsider within 90 days of the Order of Removal. The case may be reopened for exceptional circumstances; or the Board of Immigration Appeals (BIA) may itself reopen the proceedings; or the government and the claimant may jointly agree to reopen the case; or the Department of Homeland Security (DHS) may request the reopening because of a claim of fraud or of a crime that supports termination of asylum. The Motion to Reopen can also be reopened because evidence was not previously available.


An appeal may be filed with the Board of Immigration Appeals (BIA) after a Judge’s findings and the BIA will review anew on non-factual issues or clearly erroneous standards employed by the Judge or because the Judge had not made a detailed finding of the facts. The Board may also remand the case if the Board believes the Judge would likely change the decision based on the Board’s advice.


If the applicant’s Appeal or a Motion to Reopen or Reconsider is denied by the BIA, a claim for asylum review may be sought before a U.S. Court of Appeals. The Court of Appeals may review an abuse of discretion and whether there is any valid basis for a review. An application for a stay may be submitted while the case is under review by the Court. The Court of Appeals has the power to reverse the findings of the Immigration Judge or the Board of Immigration Appeals. For example, Courts of Appeal have reversed in a case where an Immigration Judge found that arrests and beatings did not amount to persecution; or where demonstrators at a political rally would likely be persecuted; or where an Immigration Judge confused vague testimony with lack of detail testimony; or where an Immigration Judge made impossible demands and findings and failed to address all the events in an asylum claim.

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