USCIS Changes Procedure for Filing for Asylum After Termination of Immigration Court Proceedings

On October 16, 2023, U.S. Citizenship and Immigration Services (USCIS) issued new instructions for asylum applications submitted after court dismissal or termination of an applicant’s removal proceedings. If a respondent’s removal proceedings are dismissed or terminated and they choose to apply (or re-apply) for asylum with USCIS, they must file a new paper Form I-589, Application for Asylum and Withholding of Removal, with the USCIS Lockbox that has jurisdiction over their place of residence.

Applicants who already had a pending asylum application in immigration court should include updated information regarding their biographic details and asylum claim in their new application. In addition, USCIS recommends that an asylum applicant include (1) proof that the immigration court dismissed or terminated an applicant’s removal proceedings (such as the Immigration Judge’s Order of Dismissal) and (2) proof that the applicant had a pending I-589 application when the court dismissed or terminated their removal proceedings (such as the I-589 receipt notice). If an applicant can demonstrate he or she had a pending I-589 while in immigration court proceedings, USCIS will preserve the applicant’s original I-589 receipt date. USCIS will then use the original filing date to determine the one-year filing deadline, employment authorization eligibility based on the pending asylum application, eligibility for child dependent applicants, and asylum interview scheduling priority.

Note: If an applicant originally filed an I-589 Application for Asylum with USCIS and the Asylum Office referred the asylum application to immigration court, where it remained pending until the removal proceedings were dismissed, USCIS will accept the form with the intent to issue the applicant a new discretionary Notice to Appear (NTA). With the issuance of a new NTA, an applicant will be sent back to immigration court proceedings if USCIS had originally referred their asylum case to court.

On the one hand, the benefits for re-applying for asylum are clear. After dismissal, a foreign national is no longer in court proceedings and is no longer in immediate risk of removal from the United States. The dismissal and new asylum application allows the foreign national more time to remain in the United States, safe from the harm they fear upon return to their home country. In addition, adjudicating one’s asylum claim with USCIS’s Asylum Office represents a less adversarial setting than immigration court. With USCIS, applicants present their case to an asylum officer in an interview setting, whereas in immigration court, applicants present their claim to a judge and government attorney, where they are subject to a higher level of scrutiny and interrogation. Lastly, reapplying for asylum allows a foreign national to obtain or renew work authorization in the United States.

However, for some asylum applicants, re-applying for asylum after dismissal may be risky, as they can end up right back in immigration court proceedings. This is especially true in the case of those whose asylum applications were originally referred to immigration court. Therefore, for those with a strong asylum claim, it may be more beneficial to go forward with their claim in court, rather than delaying the process. While Asylum Offices have a statutory duty to schedule an asylum interview within 45 days of the initial filing, asylum applicants are currently waiting years to be scheduled for an asylum interview.

The decision as to whether to have immigration proceedings dismissed and applying for asylum is not one that should be taken lightly. Therefore, if you are considering applying for asylum, whether in or out of immigration proceedings, it is important to consult with a qualified immigration attorney to assess your asylum claim and review your legal options to determine what works best in your case.