If you have applied for asylum in the United States, you are probably anxious about what will happen after your interview. Unfortunately, you won’t get a decision straight away. Instead, United States Citizenship and Immigration Services (USCIS) will most likely ask you to come back to the asylum office in a couple of weeks. In general, this is when you will get a written determination, and when you finally learn if your application has been approved, recommended for approval, or referred. However, in certain circumstances, USCIS may send you a letter, called a Notice of Intent to Deny.
In this article, we’ll talk about what it means if your application has been referred or if you receive a Notice of Intent to Deny. We will discuss referral first, and then towards the end of this article, talk about what it means to receive a Notice of Intent to Deny. We will also briefly touch on your options for appeals and other types of legal recourse, in the event that you receive these two types of answers to your application.
Your application will be referred if you don’t qualify for asylum based on your application and interview, AND IF you have fallen out of status (you no longer have a valid immigration status). You will receive a Notice to Appear (NTA) which is the initiation of Removal Proceedings (deportation proceedings), and a brief referral letter which will outline the reasons your asylum case was not approved. Due to busy caseloads in Immigration Courts across the country, typically the NTA itself will not have the place, date and time that you need to appear for your first hearing. Typically, this will come separately within a few weeks of receiving the NTA. Make sure that you pay careful attention to this separate notice when it comes, that will tell you when and where you need to show up in Immigration Court for your Removal Proceedings. If you miss your hearing, you may forfeit your appeal rights and be ordered removed from the United States automatically.
If you are “referred” and served with a Notice to Appear for Removal Proceedings, this is not necessarily the end of the world. Why? Because, this means that you will have a chance to convince an Immigration Court judge that you should receive asylum during removal proceedings; along with arguments for why you are entitled to “Withholding of Removal,” and protection under the “Convention Against Torture.” Along with any material previously submitted to the USCIS asylum office, the judge will consider the statements you make during this hearing, and new material relevant to your argument. This time you won’t have to wait; typically the judge will announce his or her decision as soon as the hearing is over.
Approximately half of the cases heard by immigration judges end with denials. If this happens in your case, you have 30 days after the decision is announced to bring the matter to the Board of Immigration Appeals (BIA). Assuming you reserved the right to appeal, you cannot generally be deported during this 30 day period as there is an “automatic stay” for 30 days. Also, once you file your appeal with the BIA within 30 days of the Immigration Judges decision, you cannot generally be deported while the BIA is processing and deciding on your case. It can take several months or even longer for the BIA to issue a decision on your case, and during this time, you are still thought of as being “asylum pending.” This is not a legal immigration status, you cannot accrue “unlawful presence” while your asylum application is pending; AND after 150 days of your asylum application “pending,” you can apply for employment authorization.
The Board of Immigration Appeals functions separately from USCIS and the Immigration Court. Its only job is to decide whether the immigration judge made a mistake, based on its review of the immigration court records including the evidence and testimony presented at your hearing. If the BIA finds that the immigration judge wrongly denied your request for asylum, it will either grant asylum or send the case back to the immigration court for further adjudication. On the other hand, if it agrees with the immigration judge, it will deny your appeal.
By this time, you may be ready to give up. However, there is something else you can do often (assuming it is legally permissible in your individual case). This next step is to take the case to a federal court called the U.S. Circuit Court of Appeals.
This can be a costly option, but it is also possible that by filing an appeal, you can extend your time in the United States by a few years (even if it is denied). If you and your immigration lawyer decide to pursue this option, he or she will submit a written argument explaining why the BIA wrongly denied your appeal. If the court thinks this argument has merit, it will agree to “hear the case.” Your lawyer will then have an opportunity to address the court directly, or make an “oral argument.”
After it hears this argument, the court will grant asylum or send your case back to immigration court. However, you should be aware that it will probably be quite some time before the court issues this decision — in fact it may take a few years, depending on where you live and which court hears the case. The last option you will have if confronted with another denial, is to appeal to the U.S. Supreme Court. However, there is no guarantee the court will agree to take the case. Generally, you will have better odds if your asylum case involves a legal issue raised in other asylum cases throughout the country, but it is still relatively unlikely that the Supreme Court will hear your case.
So far, we have discussed your options if your asylum application is referred. But what can you do if you get a Notice of Intent to Deny?
You’ll get this type of notice if you are still “in status,” and the officer who initially reviews your application, decides you don’t qualify for asylum. This simply means that you must submit more material to support your application, because the asylum officer does not believe you have met your burden of proving your case. This Notice of Intent to Deny (NOID) will explain the reasoning for the denial of your application. You will have 16 days to respond to this NOID, in an effort to overturn their decision. Be sure to provide the information requested by the asylum office, because failure to do so will result in the denial of your asylum application. If you do a good job responding to a NOID, by providing additional evidence that supports your eligibility, you can get your asylum claim granted in many circumstances. Or you could get a final denial.
If you get a final denial following a Notice of Intent to Deny, historically you wouldn’t have had access to any further legal recourse, because the immigration court doesn’t hear cases in which applicants still have legal status. You would simply go back to living on whatever legal nonimmigrant status you have. You would be able to try to apply for asylum again once you fell out of status, but it can be hard to get the Asylum Office to consider second applications; unless you can prove unusual or extraordinary circumstances that directly affect your eligibility.
This was historically the case for denied asylum applicants who had valid legal status. Recently however, with the USCIS Policy Memorandum (PM-602-0050.1) published on June 28th, 2018, it seems that there may be some further discretionary legal recourse available; to denied asylum applicants in valid status, sometimes. The language in this document says that, basically the USCIS will allow denied asylum applicants who are in valid status, to have Notices to Appear (NTA) (for removal proceedings), issued to them for when they fall out of status. This is discretionary and USCIS does not have to agree to do this for any given applicant. The asylum applicant will have to request an NTA in writing, and it is up to USCIS whether they will give them this. What this means however, is that if USCIS gives a denied applicant this discretionary NTA (for when they are out of status), it means they can get their asylum case heard again in Immigration Court (once they are out of status). They would get to thus live in the United States on their valid status until it expires, and then go through the process referenced above in the “referrals” section. Meaning, if the Immigration Judge denies them asylum relief (and/or withholding of Removal and Convention Against Torture protection), they would have the appeal options previously discussed; and at the very least, more time in the United States. It is very important to emphasize that this is a very new discretionary policy change, and nobody knows exactly how often and when, USCIS will provide this type of legal recourse to denied affirmative asylum applicants who are in valid status.
In summary, finding out that your case has been referred does not mean that it has actually been denied. It will automatically be sent to Immigration Court, where an Immigration Judge will hear your case newly. If the Immigration Judge denies your asylum, you may also appeal to the BIA, and possibly U.S. federal courts. A Notice of Intent to Deny is simply a request for more information sent to you if you still have legal status, but if they believe that you do not qualify for asylum (based on the submitted evidence). Failure to submit the requested information will result in the denial of your application, so you should always respond to a Notice of Intent to Deny. If you respond well enough, you may very well be given asylum. In either case, it is important to consult a qualified immigration attorney, so that you may have the best chances of success.