Consequences of Losing a Political Asylum Case in the USA: What Comes Next?

By Brian Figeroux, Esq. | Editorial Credit: Evgeniia Primavera / shutterstock.com 

Political asylum is a vital legal protection for individuals who fear persecution in their home countries due to their race, religion, nationality, political opinion, or membership in a particular social group. However, not all asylum applications are successful. Losing a political asylum case in the United States can have profound consequences, often leading to removal proceedings and other legal, social, and emotional challenges. This comprehensive analysis explores what happens after an asylum application is denied, the legal options available to applicants, and the long-term implications for individuals and their families. To read the complete analysis in our publication, click here, and on our civil rights blog, click here.

1. Overview of Political Asylum in the USA

Asylum is a form of humanitarian relief offered to individuals who can demonstrate a well-founded fear of persecution if returned to their home countries. The legal framework governing asylum in the U.S. is established by the Immigration and Nationality Act (INA) and guided by international obligations under the 1951 Refugee Convention and its 1967 Protocol.

To qualify for asylum, an applicant must:

1. Prove they meet the definition of a refugee under U.S. law.
2. File their application within one year of arriving in the U.S. (with certain exceptions).
3. Demonstrate credible fear of persecution on specific grounds.

Asylum seekers apply affirmatively through U.S. Citizenship and Immigration Services (USCIS) or defensively during removal proceedings in immigration court. If denied, the consequences can be severe, and the next steps vary depending on the circumstances.

2. What Happens After Losing an Affirmative Asylum Case?

Referral to Immigration Court

If USCIS denies an affirmative asylum application, the applicant is typically referred to an immigration judge for removal proceedings. This is often the first significant consequence of losing an asylum case.

1. Notice to Appear (NTA):
   • The applicant will receive a Notice to Appear in immigration court, initiating removal proceedings.
   • The NTA outlines the government’s charges against the individual, including unlawful presence or visa overstays.
2. Defensive Asylum Hearing:
   • The individual has an opportunity to reapply for asylum defensively during removal proceedings.
   • This process allows the applicant to present additional evidence and arguments before an immigration judge.
3. Legal Representation:
   • At this stage, legal representation is crucial. Individuals without a lawyer face significantly reduced chances of success. Studies have shown that asylum seekers represented by counsel are five times more likely to win their cases than those without representation.

3. Consequences of Losing an Asylum Case in Immigration Court

If the immigration judge denies the defensive asylum application, the following outcomes may occur:

1. Issuance of a Removal Order

1. Deportation Proceedings:
   • If asylum is denied, the applicant will generally receive an order of removal, which mandates their deportation to their home country.
   • Deportation is carried out by Immigration and Customs Enforcement (ICE).
2. Immediate Risks:
   • Deportees may face imprisonment, torture, or death in their home countries, particularly if their fear of persecution is genuine but unsubstantiated in court.
3. Consequences of a Removal Order:
   • A removal order can bar the individual from reentering the U.S. for a period of 10 years or more.
   • Reentry after removal without proper authorization can result in criminal prosecution and imprisonment.

1. Ineligibility for Other Immigration Benefits

1. Impact on Immigration Status:
   • Once a removal order is issued, the individual may be ineligible for most other forms of immigration relief, including adjustment of status, work permits, and travel authorization.
2. Loss of Employment Authorization:
   • Asylum seekers often receive work authorization while their cases are pending. Denial of asylum may result in the revocation of these permits, leading to job loss and financial instability.

1. Emotional and Psychological Consequences

1. Fear of Persecution:
   • Losing asylum may exacerbate mental health issues such as anxiety and depression, particularly for individuals who fear persecution upon return to their home countries.
2. Family Separation:
   • Deportation often separates families, leaving spouses and children in the U.S. while the applicant is removed.
3. Stigma in the Home Country:
   • Returning to one’s home country after losing asylum can carry stigma, particularly in cases where the individual’s asylum claim became public knowledge.

4. Legal Options After Losing an Asylum Case

While losing an asylum case can be devastating, several legal avenues may still be available to individuals facing removal.

1. Appeals to the Board of Immigration Appeals (BIA)

1. Filing an Appeal:
   • An applicant can file an appeal with the BIA within 30 days of receiving the immigration judge’s decision.
   • The appeal must outline specific errors of law or fact made during the immigration hearing.
2. BIA Decision:
   • The BIA may uphold, overturn, or remand the case for further proceedings.
3. Limitations:
   • The appeals process can be lengthy and costly, requiring strong legal representation to succeed.

1. Petitions to the Federal Courts

1. Judicial Review:
   • If the BIA denies the appeal, the applicant may seek judicial review in a U.S. Court of Appeals.
   • Federal courts typically review procedural and legal errors rather than reevaluating the merits of the case.
2. Temporary Stay of Removal:
   • Filing an appeal may delay deportation, allowing the applicant additional time to explore other legal options.

1. Filing for Other Forms of Relief

1. Withholding of Removal:
   • An alternative form of protection, withholding of removal prevents deportation to a country where the individual faces a more than 50% likelihood of persecution.
   • This relief is harder to obtain than asylum, as it requires a higher standard of proof.
2. Relief Under the Convention Against Torture (CAT):
   • Applicants who cannot meet the asylum standard may qualify for protection under CAT if they can demonstrate a likelihood of being tortured in their home country.
   • CAT does not grant permanent residency or a path to citizenship, but it does prevent removal.
3. Temporary Protected Status (TPS):
   • If the applicant’s home country is designated for TPS due to armed conflict, natural disaster, or extraordinary conditions, they may apply for temporary protection from deportation.

1. Adjustment of Status or Reopening Cases

1. Marriage to a U.S. Citizen:
   • Marriage to a U.S. citizen may provide a pathway to adjust status, but this requires the withdrawal of the asylum case and careful navigation of immigration laws.
2. Motion to Reopen or Reconsider:
   • If new evidence emerges or circumstances change, the applicant can file a motion to reopen their case.
   • Motions to reconsider are filed when legal errors are identified in the original decision.

5. Long-Term Consequences of Losing an Asylum Case
6. Financial Instability

• Asylum seekers often lose work authorization after their case is denied, leading to job loss and financial hardship.
• Legal fees for appeals and motions can create additional financial burdens.

1. Social and Emotional Impact

• Deportation or the fear of deportation creates uncertainty and distress for individuals and their families.
• Children of asylum seekers, particularly U.S.-born citizens, may face significant emotional challenges if their parents are removed.

1. Legal Precedent and Record

• Losing an asylum case creates a legal record that may affect future immigration applications.
• Individuals with removal orders must navigate additional legal barriers to reenter the U.S. lawfully.

6. Strategies for Avoiding Denial

To improve the chances of success in an asylum case, applicants should focus on the following:

1. Strong Legal Representation

• Hiring an experienced immigration attorney is crucial for navigating complex asylum laws and presenting a compelling case.

1. Thorough Documentation

• Providing credible evidence, such as police reports, medical records, and witness statements, is essential to corroborate claims of persecution.

1. Consistency and Credibility

• Asylum seekers must ensure their testimony is consistent and aligns with documentary evidence.

1. Advocacy and Support

• Working with advocacy groups and community organizations can provide emotional support and resources for asylum seekers.

7. Policy Implications and Recommendations

Under stricter immigration policies, asylum seekers face increasing challenges. Recommendations for improving the system include:

1. Increased Legal Resources:
   • Expanding access to legal representation for asylum seekers could improve outcomes and ensure fair proceedings.
2. Policy Reform:
   • Reforming the asylum process to reduce delays and backlogs would benefit both applicants and the immigration system.
3. Community Support Programs:
   • Providing resources for asylum seekers, such as housing, mental health services, and legal aid, can mitigate the impact of case denial.

Conclusion

Losing a political asylum case in the United States carries serious consequences, from removal proceedings to long-term social and emotional challenges. However, legal options such as appeals, withholding of removal, or protection under CAT can provide hope for individuals facing deportation. Asylum seekers must navigate a complex legal landscape, often requiring skilled legal representation and support from advocacy groups. By understanding the consequences and available remedies, asylum seekers and their advocates can better navigate the challenges of the U.S. immigration system.