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Asylum in Atlanta Affirmative vs. Defensive Applications

Earlier this month, the U.S. Department of Justice released numbers that show the approval and denial rates from Immigration Courts and individual Immigration Judges around the U.S.

Nationally, the average asylum grant rate in immigration courts is 53% which, effectively, brings the national denial rate to 47%.

In contrast, the Stewart Detention Center in south Georgia denied 98% of all asylum claims put before the judges. The Atlanta Immigration Court was not far behind with a denial rate of 89%. With numbers like that, why would anyone apply for asylum in Georgia?

When seeking asylum in Immigration Court, it is “defensive asylum.” This means that the applicant must be in removal proceedings, either for being apprehended directly by ICE at the border or for being turned over to ICE after a criminal conviction or infraction. The foreign national will have a trial where he or she must explain the claim before the Immigration Judge and be subject to questioning by an ICE attorney.

This is a difficult, trying process for all parties involved: evidence is presented, testimony is given, and the applicant is put through an intense examination while on the stand. However, there is no real reason why the Atlanta Immigration Court approves 11% of asylum cases but other courts, such as the ones in Baltimore and Phoenix approve over 50% of their cases.

An “affirmative asylum” case is one where the foreign national proactively files for asylum. They do not wait to get caught, but instead file a form and supporting documents that demonstrate the fear to return to the home country. A person who files affirmatively has the opportunity to be interviewed by an Asylum Officer.

The Asylum Officers that interview petitioners in Atlanta are actually based in Arlington, Virginia. They come to Atlanta to conduct interviews at various points throughout the year. Asylum Officers are specially trained, as the subject matter is so sensitive.

At asylum interviews, the Asylum Officer simply gets to know the foreign national and asks detailed questions about the fear of persecution. The interview can take three to four hours. There is no adversary and the process, while still stressful, is less intimidating than being in a courtroom.

Only if the affirmatively filed application for asylum cannot be approved by an Asylum Officer the foreign national is put before an Immigration Judge. In such cases, the Asylum Officer does not deny the asylum application but refers the case to the Immigration Court for a trial.

Affirmative asylum cases currently have a 42% approval rate. This isn’t stellar, but at least that’s a better number than the 11% approval rate in the Atlanta Immigration Court for defensive asylum.

If you have a true fear to return to your home country and reside in Georgia, don’t let media reports about the abysmal rates in the Atlanta Immigration Court dissuade you from applying for asylum. By waiting, you may jeopardize your chances of approval.

If you file for affirmative asylum, make sure you file and present the strongest case possible – you want to win at the interview level and not take your chances at a trial in Atlanta Immigration Court.

– Tracie

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