Criminal Defense Lawyers

Brooklyn Asylum Lawyers

Your asylum case was denied. The immigration judge didn’t believe you, or they found a legal reason to reject your claim, or something went wrong that you don’t fully understand. Now you’re facing the possibility of deportation back to the country you fled. The question that dominates your thoughts: what happens next, and is there any way to fight this decision?

The answer is yes – you can fight. When an immigration judge denies your asylum case, you have the right to appeal that decision to the Board of Immigration Appeals. If the BIA denies your appeal, you can petition for review in federal court. The appeals process exists because immigration judges make mistakes, and higher courts can correct those errors. But the process has strict deadlines and technical requirements. Missing a deadline or filing incorrectly can end your case permanently.

This article explains what happens when asylum is denied, how to appeal to the Board of Immigration Appeals, what the BIA actually reviews, the path to federal court if needed, your options if you miss deadlines, and what happens with your work authorization and risk of detention during the appeals process. Understanding these realities helps you make informed decisions about fighting your case.

Most information about asylum focuses on how to win. But aproximately 60% of asylum cases are denied in immigration court. If your one of them, you need to understand your options – and you need to act fast, because the first deadline starts running the moment the judge announces there decision.

The 30-Day Deadline You Cannot Miss

When an immigration judge denies your asylum case, you have exactly 30 days to file a Notice of Appeal with the Board of Immigration Appeals. This deadline is absolutly rigid. Miss it by even one day, and you lose your right to appeal. Your case is over.

The 30 days starts from the date the judge issues there decision. If the judge denied your case oraly at your hearing, the clock starts that day – not when you recieve written confirmation. If the judge reserved decision and mailed it later, the clock starts from the mailing date shown on the decision.

Do not wait to decide weather to appeal. File the Notice of Appeal first, then decide later weather to pursue the appeal fully. Filing preserves your rights. Not filing ends them. You can always withdraw an appeal you filed; you cannot file an appeal you missed.

The Notice of Appeal is filed on Form EOIR-26. It must be filed directly with the Board of Immigration Appeals, not with the immigration court that denied your case. Filing with the wrong office dosnt count. Many people lose there appeals this way – they file the notice with the immigration court were there case was heard, assuming the court will forward it. It dosnt work that way.

What the Board of Immigration Appeals Actually Does

Many people misunderstand what the BIA does. They think its a chance to retry there case, present new evidence, or have a new judge hear there story. Thats not what happens.

The BIA reviews the existing record of your case for legal errors. They read the transcript of your hearing, review the evidence that was submitted, and look at the immigration judges decision. They dont hold new hearings. They dont hear new testimony. They dont consider evidence that wasnt already part of your case.

The BIA is asking one question: did the immigration judge make a mistake? Mistakes might include misapplying the law, ignoring relevant evidence, making findings that arent supported by the record, or denying due process. If the BIA finds a signficant error, they can reverse the decision or send the case back for a new hearing. If they dont find an error, they dismiss the appeal and the denial stands.

This is why your appeal brief matters so much. You need to identify specific legal errors in the judges decision and explain why those errors require reversal. Saying “the judge was wrong” or “the judge didnt beleive me” isnt enough. You need to point to legal standards the judge violated or findings that contradict the record.

Filing Your Appeal – Forms and Fees

To appeal to the BIA, you’ll need Form EOIR-26 (Notice of Appeal) and potentialy Form EOIR-27 (Notice of Entry as Attorney or Representative). There’s a filing fee that changes periodicaly – check the current amount at USCIS or the EOIR website.

If you cant afford the filing fee, you can request a fee waiver. The BIA grants fee waivers to people who demonstrate financial hardship. Submit the waiver request with your Notice of Appeal – dont let financial concerns prevent you from meeting the deadline.

On Form EOIR-26, youll be asked weather you intend to file a brief. A brief is your detailed legal argument explaining why the judges decision was wrong. If you say youll file a brief and then dont file one, the BIA may dismiss your appeal. If you say you wont file a brief, the BIA decides your appeal based solely on the Notice of Appeal and the existing record.

Almost always, you should file a brief. The Notice of Appeal gives you limited space to explain your arguments. A full brief lets you develop legal arguments, cite relevant cases, and point to specific evidence the judge ignored or misinterpreted. Without a brief, your chances of winning are significently lower.

The Appeal Brief – Your Most Important Document

If you indicate youll file a brief, the BIA sets a deadline – typicaly 21 days from when the immigration court sends your case file to the BIA. This deadline can sometimes be extended for good cause, but extensions arent guarenteed.

The brief is were you make your case for reversal. Effective briefs identify specific errors in the judges decision, cite legal authority showing why those findings were wrong, and explain what the correct outcome should be. Weak briefs make general complaints without legal support or ask the BIA to re-weigh evidence the judge already considered.

Focus on errors of law rather then disagreements about facts. The BIA gives substantial deference to the immigration judges factual findings, especialy credibility determinations. Arguing “the judge should have beleived me” rarely succeeds. Arguing “the judge applied the wrong legal standard” or “the judges findings are unsupported by the record” is more likely to work.

If your case involves credibility issues, look for objective inconsistencies between the judges findings and the record. Did the judge say you didnt provide evidence when you actualy did? Did the judge misquote your testimony? Did the judge ignore corroberating documents? These are the kinds of errors the BIA can address.

Possible Outcomes at the BIA

When the BIA decides your appeal, there are three basic outcomes:

Appeal sustained. The BIA agrees with you that the judge made a serious error and reverses the denial. This is the best outcome – you win your asylum case. However, this outcome is relatively rare. The BIA dosnt often grant asylum directly on appeal.

Case remanded. The BIA finds an error but dosnt grant asylum outright. Instead, they send the case back to the immigration judge for further proceedings. Maybe they want the judge to reconsider specific evidence. Maybe they found a procedural error that requires a new hearing. A remand isnt a win, but it gives you another chance.

Appeal dismissed. The BIA finds no reversible error and upholds the judges denial. Your asylum case remains denied. But this isnt necesarily the end – you may still have options in federal court.

Taking Your Case to Federal Court

If the BIA dismisses your appeal, you can file a petition for review with the federal Court of Appeals. For cases decided by immigration courts in the New York area, this means the Second Circuit Court of Appeals. You have 30 days from the BIA decision to file your petition.

This is another strict deadline. Miss it and you cannot proceed to federal court. File your petition within 30 days even if you havent fully developed your arguments yet.

Federal court review is even more limited then BIA review. The court looks for legal errors, and it gives substantial deference to both the immigration judges findings and the BIAs legal conclusions. Winning in federal court is difficult – the court isnt second-guessing the asylum decision, its only checking weather the decision followed the law.

However, federal court review matters because some cases involve genuine legal errors that the BIA failed to correct. Constitutional issues, misapplication of asylum law, and procedural violations can all be grounds for reversal. Having your case reviewed by Article III judges also provides a check on the immigration system that dosnt exist at lower levels.

Work Authorization During Appeals

One important piece of good news: while your appeal is pending, your employment authorization document (EAD) remains valid. You can continue working legaly while you fight your case. The denial dosnt automaticaly terminate your work permit.

However, if your EAD expires while the appeal is pending, you may need to renew it. The rules around asylum-based EAD renewal during appeals are complicated – consult with an attorney to make sure you maintain valid work authorization throughout the process.

You should also not be deported while your appeal is pending with the BIA. The appeal stays the removal order, meaning immigration enforcement shouldnt be actively trying to deport you. But this protection dosnt extend to everything – you could still be detained during the appeal process, especialy if there are other factors in your case.

Motions to Reopen and Reconsider

Appeals arent the only option after denial. You may also be able to file motions to reopen or reconsider your case.

A motion to reopen asks for your case to be reopened based on new evidence that wasnt available during your original proceedings. Maybe country conditions have changed. Maybe you have new documents that support your claim. Maybe something happend since your hearing that strengthens your case. A motion to reopen lets you present this new information.

A motion to reconsider asks the decision-maker to look at there decision again based on legal or factual errors in the original ruling. Its similar to an appeal but filed with the same entity that made the decision rather then a higher authority.

Motions have there own deadlines. Generally, motions to reopen must be filed within 90 days of the final decision, though this can vary based on circumstance. Motions to reconsider typically have shorter deadlines. Miss the deadline and the motion wont be considered.

If You Missed the Appeal Deadline

What if you didnt file your appeal in time? Is your case completly over?

The BIA has limited authority to accept late appeals under a doctrine called “equitable tolling.” To qualify, you must show that you were diligent in trying to file and that extraordinary circumstances prevented timely filing. This is a high bar – ordinary excuses like being busy, not understanding the deadline, or having trouble finding a lawyer usually dont qualify.

Examples of extraordinary circumstances might include: your lawyer abandoned your case without telling you; you were physically incapacitated and unable to file; USCIS or the court made an error that prevented timely filing. Even then, you must show you acted quickly once the obstacle was removed.

Motions to reopen might also be an option if you missed the appeal deadline, particuarly if theres new evidence or changed circumstances. These motions have there own deadlines and requirments, but they can sometimes revive a case that seemed finished.

Detention During the Appeals Process

While deportation should be stayed during your appeal, detention is another matter. If you were detained during your immigration proceedings, you may remain detained during the appeal. If you were released, immigration enforcement could potentialy detain you even while the appeal is pending, especialy if other factors make them concerned you wont appear for eventual removal.

The risk of detention varies based on individual circumstances – criminal history, immigration history, ties to the community, and how long the process has taken all affect ICE’s decisions. Having an appeal pending dosnt provide absolute protection against detention, though it should protect against actual deportation.

If your detained during the appeals process, you have additional challenges in fighting your case. Access to lawyers, legal materials, and communication becomes harder. Cases from detention often move faster with less time to prepare. If detention is a risk in your situation, working with an attorney who can advocate for release or bond is important.

Working With an Immigration Attorney

Appeals are technicaly complex. The requirements are strict, the deadlines are unforgiving, and the legal arguments require expertise in asylum law and appellate practice. If you couldnt afford an attorney for your original asylum case, the appeals stage is were representation becomes even more critical.

Legal aid organizations in Brooklyn serve asylum seekers, and some specialize in BIA appeals. Law school clinics, non-profit legal services, and pro bono programs may be able to help. The Immigrant Legal Resource Center and similar organizations maintain referral lists and resources.

If your representing yourself, focus on understanding the procedural requirments above everything else. Filing on time, with the correct forms, to the correct address, is more important then having perfect legal arguments. You can have the best brief in the world, but if you file it late or to the wrong office, it dosnt matter.

Common Grounds for Successful Appeals

While most appeals are denied, certain types of errors are more likely to result in reversal or remand. Knowing what the BIA looks for helps you focus your arguments:

Due process violations. If the immigration judge denied you a fair hearing – cut off your testimony, refused to let you present evidence, failed to provide an interpreter – these procedural errors can warrant reversal. Everyone is entitled to a fair hearing regardless of how there case turns out on the merits.

Misapplication of legal standards. If the judge applied the wrong legal test – used the wrong definition of persecution, applied incorrect standards for particular social groups, or misunderstood what “well-founded fear” requires – these are errors of law that the BIA can correct.

Findings unsupported by the record. If the judge made factual findings that contradict the evidence submitted, or ignored evidence that supported your claim, these can be grounds for remand. This is different from disagreeing with how the judge weighed the evidence – its about findings that simply dont match what was in the record.

Failure to consider material evidence. If you submitted country condition reports, expert declarations, or corroberating documents that the judge never mentioned or considered, the BIAmay remand for the judge to address that evidence. Judges must consider all material evidence, even if they ultimately find it unpersuasive.

Changed country conditions. Though this is usualy raised through a motion to reopen rather then a direct appeal, significant changes in your home country since your hearing can sometimes provide grounds for reconsideration. New government in power, new patterns of persecution, new documentation – these may change the analysis.

The Reality of Asylum Appeals

Honesty about the appeals process: most appeals are denied. The BIA dosnt reverse immigration judges lightly, and federal courts give substantial deference to the immigration system. Filing an appeal dosnt mean you’ll win – it means you’ll have a chance to argue that errors occured.

But appeals do succeed sometimes. Judges make mistakes. Legal errors happen. Cases that seemed lost at the trial level get reversed on appeal. The possibility of success, even if not guarenteed, is worth pursuing if you genuinly beleive the judge got it wrong.

The alternative – accepting denial without fighting – means returning to the country you fled. If the persecution you feared was real, that return is dangerous. Fighting your case through appeals buys time, preserves options, and gives you chances for justice that you wont have if you give up.

The process is difficult. The odds arent great. But for people facing genuine persecution, the appeals process represents there last chances within the legal system to obtain protection. Understanding how it works helps you use those chances effectively.

If your in Brooklyn and your asylum case has been denied, dont assume its over. Talk to an attorney about weather an appeal makes sence for your case. Look at what the judge wrote and identify potential errors. Make sure you understand the deadlines your facing. And if you decide to fight, fight smart – with proper filings, strong arguments, and an understanding of what the system is actualy looking for when it reviews your case on appeal.

The next 30 days after denial are critical. Use them wisely. Your future may depend on the decisions you make right now.