What Happens If A Detained Immigrant Is Denied Asylum?

If a detained immigrant is denied asylum, it means their request for protection based on fear of persecution in their home country has been rejected by an immigration judge or asylum officer. This decision can have serious consequences, including deportation, but there are legal options available to challenge the denial or seek alternative relief.

What Happens After Asylum Denial:

Deportation Order:

If an asylum claim is denied and the immigrant does not have any other legal status, they may be ordered to leave the U.S. and face deportation to their home country or another country willing to accept them.

The deportation process will proceed, and the immigrant may be sent back to their home country unless they are granted another form of relief or appeal.

Appealing the Decision:

Board of Immigration Appeals (BIA):

The immigrant has the right to appeal the asylum denial to the BIA. This is the first level of appeal and is typically done within 30 days of receiving the denial decision.

Federal Court Appeal:

If the BIA also denies asylum, the immigrant can file a petition for review with a U.S. federal court, seeking to overturn the decision. The court will evaluate the case and may provide a final ruling.

Other Forms of Relief:

Withholding of Removal:

If asylum is denied, the immigrant may still be eligible for withholding of removal if they can demonstrate that their life or freedom would be threatened in their home country due to factors like race, religion, nationality, or political opinion.

Convention Against Torture (CAT):

If the immigrant faces a risk of torture if returned to their country, they may qualify for protection under the Convention Against Torture, which prevents their deportation to a country where they would likely face torture.

Cancellation of Removal:

In some cases, an immigrant in detention may be eligible for cancellation of removal, especially if they have been in the U.S. for a long time and meet certain criteria.

Adjustment of Status:

If the immigrant has a qualifying family member, such as a U.S. citizen spouse or child, they might be able to adjust their status through a family-based petition, even if their asylum claim was denied.

Temporary Relief from Deportation:

Stay of Removal:

In some cases, the immigrant may be granted a stay of removal, temporarily halting deportation while they pursue further appeals or alternative relief.

Deferred Action:

An immigrant may seek deferred action, which is a temporary relief from deportation, though it does not provide legal status or a path to permanent residency.

Challenges and Limitations:

Time Constraints:

There are strict time limits for filing appeals and applications for relief, and missing these deadlines can result in the loss of options for challenging the asylum denial.

Risk of Deportation:

Even while appealing the decision, the detained immigrant could face the possibility of deportation if they do not secure a stay of removal or other protective relief.

Difficulty in Proving Claims:

For withholding of removal or CAT protection, the immigrant must prove that they face a real risk of harm, which can be difficult without strong evidence or credible testimony.

Legal Actions and Protections:

Right to Appeal:

Immigrants who are denied asylum have the right to appeal the decision. It is important to file the appeal within the required time frame and present strong legal arguments to contest the decision.

Legal Counsel:

Working with an experienced immigration attorney is crucial during this process, as they can help navigate the complexities of asylum law, file appeals, and assist in exploring other relief options.

Immigration Court Protections:

Even after an asylum denial, the detained immigrant may have the opportunity to present their case for other forms of relief during immigration court hearings.

Example:

If a detained immigrant from Honduras is denied asylum based on claims of political persecution, they can appeal the decision to the BIA within 30 days. If the BIA also denies the claim, the immigrant may file an appeal with a federal court. If they are unable to win the appeal, they may seek withholding of removal by presenting additional evidence that returning to Honduras would expose them to further harm due to their political beliefs. Alternatively, they may apply for protection under the Convention Against Torture if they fear torture upon return.