Asylum in Court

Judges are not Independent

Although the Immigration Judge in an Immigration Court appears to be objective, they are employees of the executive branch. In other words, they are on the same side as the attorney representing the US Citizenship & Immigration Service. This is why a person who represents themselves in Immigration Court without an attorney has less than a 15% chance of winning their case.

A person’s asylum case is heard depending on where they live.  Each court has power, or jurisdiction, over persons in several cities or states. If an applicant moves to a different state and files a motion to change the venue, the case may also be moved to that new state.

Syracuse University publishes a list of asylum denial rates by Immigration Judge, available here.  The higher the percentage, the more likely that judge will deny the case. The Atlanta Immigration Court, for example, appears to deny almost every asylum case as a matter of policy.

Asylum Court Process

There are two types of court hearings. Master Hearings are fast and simple procedures to determine the charges against the foreigner brought by Immigration and the defenses that will be offered. Said differently, the attorney for immigration will say that the foreigner is in the United States without authorization and the attorney for the applicant will let the judge know that the defense is an application for asylum, and perhaps other forms of relief. 

Respondents can go to Master Hearings without an attorney, but it is not advised. Their work permits may be delayed. Also, anything that they say in the courtroom will be used against them. The Judge will provide the dates of the Individual Hearing during a Master Hearing.

Asylum Court Hearing

The Individual Hearing is like a trial that one might see on television, except there is no jury. The persons present include the Judge, their assistant, a translator, the attorney representing Immigration, the attorney representing the applicant, and the applicant. Even family members and witnesses are usually asked to wait outside. The rest of the courtroom is empty.

During the individual hearing, the applicant will testify about what happened in the past and what they fear will happen in the future if they are returned to their home country. The applicant also has an opportunity to present witnesses and documents which prove they will be harmed if returned. 

If the applicant does not win the case in Immigration Court, they can appeal to the Board Immigration Appeals (the Board, or BIA). Importantly, the chance of winning a case at the BIA is less than 10%. For this reason, foreigners should be prepared to hire an attorney to appeal not only to the Board but also to the next level, which is federal court.