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Different Types of Asylum Hearings

The United States offers different paths to asylum. Understanding the nuances of this process is important for those going through this challenging journey. In this article, you will learn about the different types of hearings an asylum seeker may encounter while trying to obtain lawful status in the U.S.

With proper knowledge and legal guidance, the asylum process can be less intimidating.

Process of Obtaining Affirmative Asylum

First, let's examine the process for obtaining affirmative asylum. This is when an asylum-seeker is a foreign national currently residing in the U.S.

The general process of affirmative asylum application in the U.S. involves the following steps.

  1. Apply for Asylum and Withholding of Removal. You should submit Form I-589 to U.S. Citizenship and Immigration Services (USCIS). There is a one-year deadline for filing asylum applications. You must file your application within one year of your arrival in the United States.
  2. Attend the biometrics appointment. During the biometrics appointment, the USCIS will collect your fingerprints and photographs. The USCIS officer may also ask for other information to confirm your identity and enable them to run background checks.
  3. Receive notice of an interview with an asylum officer at the USCIS field office. The USCIS will schedule an interview at the USCIS field office. The interview will contain important information about the date, time, and location of your interview.
  4. Attend the visa interview. During the interview, an asylum officer will determine whether you qualify for asylum protection. They may ask you certain questions and check additional documentation supporting your asylum claim. Check this article about Immigration Interview Do's and Don'ts to prepare yourself for the interview.
  5. Receive the determination of the asylum officer. At the end of the interview, the asylum officer will assess whether you are qualified for asylum. Other immigration officials, such as the supervisory asylum officer, will also conduct further review.
  6. Receipt of the decision. The decision on your application for asylum is often available two weeks after your interview. This period may vary depending on certain circumstances.

Note that in some cases, the asylum officer may refer your case to an immigration judge. The asylum office may also provide a Referral Notice. This will explain why your court case is being referred to an immigration judge.

In most instances, the immigration judge orally grants or denies asylum applications after the final Merits Hearing. You may also appeal the judge's decision to the Board of Immigration Appeals within 30 days.

For more information about the process of obtaining asylum in the U.S., visit this article: A Step-by-Step Guide to the U.S. Asylum Process.

At certain points along the process, you may receive notice of a hearing that's not on the above list. You also can request certain hearings. Below are some common hearings you may encounter either as part of your application or under other circumstances where you might be facing removal from the U.S.

Bond Re-Determination Hearings

An undocumented migrant may be detained by the U.S. Department of Homeland Security (DHS). If so, the DHS will set a bond so you can be temporarily released from custody. A bond is money or property you give to the government as a promise to comply with all government requests, such as attending all court hearings for your asylum case. If you fulfill your end of the bargain, you get the money or property back. A bond re-determination hearing allows you to challenge the amount of bond initially set.

A bond re-determination hearing isn't part of removal proceedings. The removal proceeding determines your eligibility to stay in the United States. The bond re-determination hearing focuses on the amount the detainee should give for their temporary release. The result of the bond hearing doesn't affect the asylum application. But failing to meet your obligations upon your release can affect your case.

You can request an immigration judge conduct a bond hearing. Here, the immigration judge has the authority to reassess the amount set by the DHS. Some factors that the immigration judge may look into when considering the amount of bond include:

  • Criminal history
  • Immigration history
  • Potential risk to public safety
  • Ties to the community

You would request a bond re-determination hearing if you feel the bond was set too high.

Rescission Hearings

A rescission hearing does not happen in every asylum case. Instead, a rescission hearing occurs when there is doubt that an immigrant obtained their status lawfully. During rescission proceedings, an immigration judge determines whether a person can keep their lawful permanent resident (LPR) status.

Rescission hearings often arise in cases where there are indications that the person obtained their permanent resident status by fraud, misrepresentation, or violating immigration laws. An example is when a person falsifies information while seeking asylum or doesn't disclose crucial facts that would affect their eligibility for LPR status.

If you've held a permanent resident status for more than five years, authorities can't rescind it through a rescission hearing.

Withholding-Only Proceedings

Withholding-only proceedings occur when you face removal but express a credible fear of persecution if sent back to your home country. This proceeding often occurs for those seeking defensive asylum.

The DHS has a specific procedure to follow during withholding-only hearings. When you receive a removal order, and you express reasonable fear of persecution or torture, the DHS should refer you to an asylum officer who will conduct a credible fear interview.

Here, the asylum officer decides whether your fear is reasonable. If the asylum officer decides your fear is reasonable, they will forward your case to an immigration judge. An immigration judge will then hold a withholding-only proceeding to assess your eligibility for withholding of removal or if you are eligible for protection under the Convention Against Torture.

If the asylum officer decides your fear is unreasonable, you may still ask an immigration judge to review the decision. But, if the immigration judge agrees with the asylum officer, you may face removal from the United States.

Claimed Status Review

This is essential for those going through expedited removal proceedings and claiming under oath to be an asylee, refugee, lawful permanent resident, or U.S. citizen. This review allows these individuals to have their legal status checked by an immigration judge.

The primary purpose is to verify the legitimacy of the person's claim to legal immigration status in the United States. This is particularly important for those wrongfully placed under expedited removal procedures. You can show evidence to support your claim if you're going through a claimed status review. This may include your naturalization documents, green cardrefugee or asylum approval letters, or birth certificate.

If the immigration judge finds your claim credible, they can release you from the expedited removal proceeding. But if they find your claim unsubstantiated, the expedited removal process may continue, which could lead to your deportation.

In Absentia Hearings

This type of immigration court proceeding addresses cases where a respondent failed to appear for their scheduled immigration hearing. Failure to appear could lead to the respondent being removed in absentia. This means that the immigration authorities can remove them from the U.S. without further hearings or opportunity to present their case.

There's no avenue for appeal for orders of removal issued in absentia. There are also limited cases where a person can challenge an order given in absentia. For example, you have to prove that you didn't receive proper notice to appear.

In some cases, if you received an order in absentia, you may file a motion to rescind the removal order. You can argue against the evidence of removability by filing a motion with the court.

Seek Legal Advice From an Immigration Attorney

Navigating the asylum process can be challenging, especially when you're facing a notice to appear in an immigration court. The impending hearing date can be worrisome. If you or your family members have a pending asylum hearing, it's best to seek the legal services of an immigration attorney. They can help you review your asylum case and give you the legal services and support that you need as you prepare for your immigration case.

Whether you need assistance with filing forms of relief or are preparing for your asylum interview, the legal advice of an immigration attorney will be helpful. Contact an immigration law attorney near you to know more.

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