Asylum Applicants Must Take Affirmative Action To Avoid Deportation

The Immigration Service (INS) has recently implemented more changes within its asylum unit in an effort to clear the large backlog of cases that has accumulated over the past several years, and to speed up processing times of new applications. As you may be aware, INS is now scheduling new applicants for initial interviews within three months of filing. Those applicants whose case is not granted by an asylum officer are issued an Order to Show Cause (OSC) and put into deportation proceedings. Work authorization is not available unless the case is ultimately decided before an Immigration Judge within 180 days. This latter change has drastically decreased the filing of Asylum cases, due to the waiting period for work authorization, and the increased risk of deportation.

Those persons who applied for asylum before these new policies went into effect at the beginning of 1995 stand on a different footing. Lately, many people have come into my office because they have received an interview notice with the Asylum Unit in Anaheim or following their interview, they have been referred to an Immigration Judge for deportation proceedings. These immigrants are often confused about what will happen to them at their deportation hearing: Will they be deported? May they renew their request for asylum? Is their Work Authorization still valid?

First of all, most immigrants are aware that the United States Department of State is on fairly good diplomatic terms with many democratic countries and believe that these countries have fairly good human rights records. Whether true or not, Immigration Judges largely follow the State Departments reports, and have not granted any asylum claims of late. However, one should not be discouraged if faced with an OSC, because many options are still available to avoid deportation.

At an initial hearing before an Immigration Judge, asylum applicants will be expected to plead to the charges against them. Generally, the applicant is charged with deportability for having overstayed their admission on a validly issued visa, or with having entered without a visa. These facts would have been set forth on the asylum application, and this forms the basis for the OSC. If the applicant is not represented by counsel at his or her first appearance, the Immigration Judge should inquire whether the applicant wishes to retain an attorney, and if so, allow a reasonable continuance of a week or two for that purpose.

The asylum applicant generally will admit deportability for having overstayed or entered without a visa, since this information was given to INS on the asylum application. At this point, the applicant’s choices become critical. The applicant must decide what relief from deportation he will seek. Should he decide against proceeding with the asylum request, he may ask for voluntary departure, which would allow the applicant to leave the United States voluntarily and not under an order of deportation. This result may be desirable, since an order of deportation prevents a person from seeking readmission into the United States for five years. Requesting voluntary departure alone, however, may curtail an applicant’s rights. An Immigration Judge may in his discretion grant one month or more for a person to voluntarily depart, depending on the persons’ reasons for wanting to remain longer. Many people who have appeared unrepresented before an immigration judge have been railroaded through the process, and given only one month to leave the United States for failure to articulate proper reasons for a grant of a longer period. There is no appeal of a grant of thirty days or more voluntary departure.

With proper representation, voluntary departure may be the best remedy for someone who no longer wishes to remain in the United States, or someone who has an alternate means of obtaining a green card in the near future. A person may depart the United States under an order of voluntary departure and reenter the United States via consular processing with an immigrant visa. However, it is doubtful that they may obtain a new non-immigrant visa such as a visitor’s visa. An experienced lawyer may be able to obtain an applicant a period of voluntary departure of 6 to 9 months. Thus, offering a former asylum applicant a painless method to settle his affairs and return to his or her native country.

Many asylum applicants, however, have jobs, families, and other obligations in this country which make voluntary departure an unattractive option. If you have a job, mortgage, or educational future here in the United States, your best bet may be to continue your asylum case before the Immigration Judge. First, if your case was filed prior to January 1995 you will be able to extend your work authorization when your application is before the Immigration Judge. The work authorization may also be extended during the period of any appeal, which may take several years. An asylum applicant may continue to work, go to school, and live a normal life while the case is pending. Of course, the option of voluntary departure is also available as an alternative, so an applicant may also ask an Immigration Judge for the alternative relief of voluntary departure, which is usually granted for few months even if the asylum request is denied.

Additionally, an asylum applicant who has been physically present in the United States for seven years or more is eligible to apply for suspension of deportation before the Immigration Judge which if granted results instantly in lawful permanent resident status (a green card). In order to qualify, an applicant must establish that 1) they have been in the U.S. for seven years; 2) they are a person of good moral character; and 3) their deportation would result in an extreme hardship to themselves or a parent, spouse or child, who is a U.S. citizen or lawful permanent resident. In this circumstance, the applicant may wish to proceed solely on the Suspension application. The facts surrounding the asylum claim may then be used to support the applicant’s claim that he would suffer extreme hardship if deported, due in part to political conditions in his or her native country.

While an asylum application is pending, either before the immigration Judge or on appeal, an applicant may also seek alternative visa applications to legalize their status. For example, an applicant may have a labor certification or family based petition pending while the asylum case continues. Therefore, even of the Immigration Judge does not grant the asylum case, an applicant may have other options that develop while the case is on appeal.

Although the prospect of appearing in court before a Judge is unsettling to most people, an asylum applicant should keep in mind that he is not a criminal, but just someone who is trying to make a better place for himself in the world. Even if the Immigration Judge does not agree with the applicant’s claim that he may be harmed if he returns to his or her native country, the applicant may be able to ensure that he or she will not be harmed, and be able to remain in the United States permanently.

The most important thing for those of you in this situation is to make sure that you know what your rights are, and know which options are best suited to your needs. Only an immigration lawyer experienced in Deportation cases can give you sound advice on these important questions, and guide you and your family in the right direction to achieve your dreams. The worst thing to do is to rely on the advice of friends or consultants, who may have helped you file an inaccurate application with INS in the first place, and know even less about deportation proceedings. If you don’t get help from a qualified and experienced immigration lawyer, the most you can usually expect is a plane ride back to your native country.