Jacobson & Han LLP
Los Angeles Asylum Attorneys
(213) 620-0222
Asylum is an important protection available to aliens who are unable or unwilling to return to their country of nationality because of past persecution or a well-founded fear of future persecution. The Executive Office for Immigration Review (EOIR), an office within the Department of Justice, is responsible for deciding asylum applications filed by aliens who are in removal proceedings. An immigration judge decides the case in the first instance. That decision may then be appealed to EOIR’s Board of Immigration Appeals (BIA). Asylum cases are judged based upon the law and the facts, and each case is protected by a robust review and appeal process.
Asylum adjudication does not lend itself well to statistical analysis. Each asylum application is adjudicated on a case-by-case basis, and each has many variables that need to be considered by an adjudicator. It is therefore important that any statistical analysis acknowledge these variables and not draw comparisons between substantially different cases.
- Complexities of Asylum Law
Each asylum case is unique, with its own set of facts, evidence, and testimony. Each asylum claim is adjudicated on its own merits, case-by-case, according to U.S. immigration law –– taking into account each alien’s story and home country conditions. The burden of proof is on asylum applicants to credibly establish past persecution or a well-founded fear of future persecution based on the applicant’s race, religion, nationality, membership in a particular social group, or political opinion. Applicants also must establish that they merit a grant of asylum as a matter of discretion Even when persecution claims are valid, applicants may be denied asylum if barred from that relief under the immigration laws. Such bars to asylum include: a failure to timely file an application; having firmly resettled in another country prior to coming to the United States; having persecuted others; or a history of criminal or terrorist activity.
- Adjudication Process Overview
Immigration judges seldom see the “easy” asylum cases because those cases are decided before they reach the immigration courts. Until such time as an alien is in removal proceedings, that person may file an “affirmative” asylum application with the Department of Homeland Security (DHS). DHS may grant the alien asylum. If DHS does not grant asylum, then that individual is placed in removal proceedings and can ask an immigration judge to consider his or her application. Or, if an alien did not apply for asylum before DHS but wants to raise asylum for the first time in court, the alien may file a “defensive” asylum application before an immigration judge as a defense against removal.
In either scenario, the alien has an opportunity for the asylum claim to be heard in court and, if unsuccessful, to then appeal the immigration judge’s decision to the BIA. If unsuccessful before the BIA, the alien may then appeal to the appropriate federal appeals court. Moreover, an alien unsuccessful before either the immigration judge or the BIA has other avenues –– motions to reconsider and, where appropriate, motions to reopen –– to request additional consideration of the asylum claim at either level.
The BIA may reverse an immigration judge’s decision that either grants or denies an alien asylum. Immigration judge decisions that grant asylum are seldom appealed by DHS. Decisions of the BIA are binding on DHS, and only an alien may file an appeal of an immigration judge or BIA decision to federal court. In other words, the federal courts see only those cases where the asylum claim was unsuccessful. Historically, the vast majority of decisions of immigration judges and the BIA that are appealed to federal court are upheld. According to statistics compiled by the Civil Division of the Department of Justice, decisions of immigration judges and the BIA were upheld in 89 percent of asylum cases in FY 2006.
Jacobson & Han LLP, Los Angeles Immigration Lawyer, Los Angeles Deportation Lawyer, Los Angeles Visa Lawyer, Los Angeles Work Visa Lawyer. Call our immigration attorneys at (213) 620-0222 for a telephonic or in-person immigration consultation. CONSULTATION@GREENCARD4YOU.COM
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