For asylum seekers in Immigration Court, the Individual Hearing is where they tell their story to the judge and get a decision. Even with a kind Immigration Judge (IJ) and a reasonable DHS Attorney (prosecutor), testifying in court can be intimidating and stressful. Here, we’ll talk about the Individual Hearing and what is expected from respondents (non-citizens seeking protection) and witnesses.
I’ve written before about what happens in Immigration Court, and it’s helpful to have an idea about how things will proceed. Here, we’ll focus more specifically on testimony.
Before we get to the testimony itself, let’s talk a bit about preparing to testify. In most asylum cases, the respondent will submit a form I-589 and an affidavit, which is a written statement describing the events in your life and why you need asylum. It is important to review these documents before the Individual Hearing. In most cases, there are other documents to review as well: Notes from the Asylum Office or Credible Fear Interview, letters from witnesses, police documents, medical records, and country conditions evidence. In short, make sure to review any documents that you or DHS submitted to the court or Asylum Office, or that were produced by the U.S. government in your case. If your testimony is inconsistent with your affidavit or evidence, it could cause the IJ to conclude that you are not telling the truth, which would be bad news for your case.
It is also a good idea to practice before your court hearing. If you have a lawyer, the lawyer should assist with this. The practice sessions are a chance to make sure you are familiar with facts and dates, and that you can explain any problems or inconsistencies. It is also a chance for the lawyer to familiarize himself with your testimony and evidence. This is important, since cases are often prepared weeks in advance and it is easy to forget all the details.
In terms of the testimony, a few things to keep in mind: If you do not understand a question, say that you do not understand, and the questioner will repeat or rephrase their query. This is very common and you should not be afraid to say that you did not understand, since answering a question you misunderstood could lead you down a path that damages the case. If you do not know the answer or do not remember, do not guess. If you guess and your answer is different from other information in the record, or different from what your witness says, the IJ may think you are lying. Remember also that the government may have information about you, such as statements you made at prior interviews or on your visa application, and so if you do not remember what you said previously, it is better to say, “I don’t know” than to guess and possibly get it wrong.
If you are using an interpreter, make sure to wait for the interpreter to complete their statement before you respond. Do not respond in English, even if you speak English. When you have an interpreter, judges can get annoyed if you respond in English or do not allow the interpreter to finish speaking. If you have a long answer, try to break it into pieces, so the interpreter can translate what you say and not forget anything.
In terms of the questioning, in most cases where you have a lawyer, your lawyer will ask you questions first and then the DHS attorney will ask questions. The IJ can jump in any time with questions (some judges ask more questions than others).
Your lawyer will typically go through your story during the direct examination. This is what you practice with the lawyer before court. After that, the DHS attorney can ask questions to probe credibility (whether you are telling the truth), and ask about inconsistencies in prior testimony or evidence, or implausible country condition information. The DHS attorney can also ask about any issues of concern, such as whether you filed for asylum on time, whether you have committed any crimes or engaged in terrorism-related activities, and whether your story is plausible (believable) in light of conditions in your country. Hopefully, you and your lawyer can anticipate these questions and you can be ready to answer them. The judge’s questions are often similar to questions asked by DHS, but the judge is also thinking about her decision, and may be asking questions to support her anticipated conclusion.
In my experience, DHS attorneys and judges almost never ask trick questions. However, they sometimes ask confusing questions and they can occasionally be aggressive. Pay attention to the questions and do your best to answer. If you are not sure about the answer, say so. Keep your cool and if you need a break, ask for one.
For people without lawyers, the judge will often ask questions to determine whether you are eligible for relief. It is important to review your testimony and evidence in advance, and try to think about any areas of concern. This can be difficult, since some legal issues are not obvious to a non-lawyer. If you can get (i.e., pay for) a lawyer to at least evaluate your case and look for problems, that will help you prepare. Also, you might look for a free lawyer to assist you, though resources are very limited.
After you testify, your witnesses will have a turn. Normally, your lawyer questions the witness first, followed by DHS and the judge. Witnesses must wait outside the courtroom and will not hear the respondent’s testimony. For this reason, it is important that they are familiar with what you will say and that they do not answer questions unless they actually know the answer.
A well-prepared respondent has a much greater chance for success in Immigration Court, so do your homework and make sure your witnesses do theirs. Hopefully, this will allow you to achieve a positive outcome in your case.
Hello ,
I hope you are doing well. My situation is really complicated and I don’t know where to start I came with my husband who was the main applicant in 2015, we came on B2 visa , he applied for asylum and we had the interview in 2018 and have not heard back. My husband died in March this year . We have TPS , I renewed my TPS and it is pending and I have been thinking of applying for EB2 based on NIW and now with Trump he is promising to end TPS . I don’t know if I have to apply for asylum . I don’t want to wait my whole life waiting to have a permanent status in this country that I have considered as home . What are my options as I am drained mentally and emotionally. Will this new administration will make it easier for graduates from US colleges and universities to have their green card or it is only campaign promises . No one should suffer this much to have his status adjusted . We came to this country because there is a war in our home country. I don’t get the idea that he will end TPS , has he ever thought of what a person might face if he / she is sent back to his torn country especially if there are kids (US kids)? I am really frustrated and can’t take any action .
Hi Jason,
Thank you so much for everything you’ve done for us. I have a question regarding my case.
I’m from Syria and came to the U.S. legally on an F1 visa in 2017. I applied for asylum that same year, had my interview same year 2017, and was referred to immigration court in Dallas, Texas, in 2018. After three court hearings, I was granted asylum one month after the last hearing. The DHS did not appeal the decision.
This year, my wife and son were able to join me in the U.S. via an I-730 petition, and I recently received my green card. I also applied for green cards for my wife and son, but we have not received any updates yet.
“Given that my case was very complicated and I’m from Syria, do you think there might be delays in processing their green cards, and should I have any concerns about the safety of my own green card under policies from the Trump era?”
Thank you so much for your guidance and support.
Hi Jason,
I have Refugee Travel Document and i just have applied for Green Card(asylee). Can i travel outside of US ? I heard some people saying that u need Advanced Parole if you have GC application pending??
If yes, how long does it take to make one?
Hello Mr Jason,
Thanks for all you do. I applied for Asylum in 2019 and still have not heard from USCIS concerning interview
I have an 8 year old son who is Canadian by birth. He lives with me .
1.Do you have think I should apply for his EAD?
2. If the worst ever comes to the worst and we are refused Asylum, can we ask to be deported to Canada?
Thanks so much
Hi Jason, Thanks for your message, I need to add this, I have already filed motion to advance and it was almost 3 months ago and it got denied buy that Judge who moved to east coast despite giving him all of the medical documents and I still want to know your advices if filling Mandamus , could it potentially lead to any negative repercussions from a new judge or prosecutor regarding my asylum case?
Thanks,
Rex
Dear Jason, I hope this message finds you well.
I would like to express my sincere gratitude for your continued support of asylum seekers and our community.
I referred my case to the court in Los Angeles in December 2021, and I was scheduled for an individual hearing in the middle of next year. However, it has been over three months without a judge assigned to my case. Due to my current mental health condition, as documented by my psychiatrist, this delay has been particularly challenging for me. I submitted a letter from my doctor to the court, but during my recent visit, the court clerk informed me that there is no judge available, as the previously assigned judge has moved to an immigration court on the East Coast.
Given these circumstances, I am considering the possibility of filing a Mandamus lawsuit against the immigration court. I know a knowledgeable Mandamus lawyer who could assist with this process. Would this approach be feasible, and could it potentially lead to any negative repercussions from a new judge or prosecutor regarding my asylum case?
I appreciate your guidance on this matter.
Thank you,
Rex
I do not know how a mandamus would work in court, but I think you should first try a motion to advance. You can cite the reason as your mental health and ask the court to give you an earlier court date. To do this, your case needs to be complete and ready to go. I wrote about advancing a case in court on April 20, 2017. If that fails, maybe then you can consider a mandamus, but I think the motion to advance should be tried first. Take care, Jason
We have already did that almost 3 months ago and it got denied but that Judge who moved to east coast despite giving him all of the medical documents and I still want to know your advices if filling Mandamus , could it potentially lead to any negative repercussions from a new judge or prosecutor regarding my asylum case?
Thanks,
Rex
If you have a new reason, you can try again, as it should be assigned to a new judge. In terms of mandamus, I do not do such cases, and so I am not sure whether it will work, but if it does work, I highly doubt it will cause the judge to be prejudiced against you. I suppose you never know, but it sounds like you tried other ways to get a hearing and you have a health problem and need a sooner date. Take care, Jason
@Rex rexico
unfortunately, you can’t sue the court so mandamus won’t work!!! only USCIS can be sued when it comes to immigration but no court can be sued!! bad news but sorry for that
Hi,
If someone is from TPS eligible country but they were in a pending asylum since 2015.
I understand there are limited (almost impossible) option to get travel document while in pending asylum. My question:-
1) Is it possible to get travel document by using the TPS?
2)Can they have TPS with out affecting the pending asylum?
3) If the answer is yes for the above, what’s your recommendation?
You can get Advance Parole to allow you to re-enter the US while your asylum case is pending. I wrote about that on September 11, 2017. It can be difficult to get, but it is definitely possible. You have to use your passport when you travel, and so that has to be valid. Using the passport could potentially have a negative effect on your asylum case, so be aware of that (usually it does not, but they could ask why you used a passport issued by a government that seeks to persecute you). In terms of your questions: 1 – If you have TPS, you can also apply for Advance Parole. It is easier to get AP based on TPS than based on asylum, but once you get it, it is the same document. 2 – Yes, but if you have your asylum interview and asylum is denied, they will just close your case if you have TPS (though you could re-file for asylum later). If you do not have TPS, they will send your case to court where you can apply again for asylum. 3 – I would look at the post I did from September 11, 2017 and if you think you can get AP based on asylum, you can try that, but if you prefer to have TPS, you can apply for that and then apply for AP based on TPS. Take care, Jason
Thanks a lot for creating awareness and this valuable resource for us asylum seekers.
I interviewed few months ago at the asylum office and received a call recently from the asylum officer sayin that I need to come again for another interview. The officer said its nothing to be concern about and that it’s because there’s a section of the my statement they didn’t notice or didn’t ask questions about. M question is that what’s the best way to prepare for this second interview and what can i avoid or do to help my case
I did a post on June 22, 2022 addressing this exact point and maybe that would be helpful. In short, prepare as you prepared for the first interview, and also try to review what happened at the first interview, so you can answer in a way that is consistent with what you said at that interview. Take care, Jason
Can a well-prepared immigration lawyer really overrides DHS & IJ’s biases if DHS intentionally tries to challenge the immigrant and IJ already made their mind to deny and just wants to make excuses to deny ?
It’s just a lot of times. I feel that immigration lawyers, even when they make the best arguments, the Immigration Courts/BIA/Federal Courts still ultimately rule against the immigrant, making me question whether it will make a difference…
It works both ways, lots of lawyers, including me, have done cases where we think the client cannot qualify for relief, but we win anyway. Take care, Jason
Not necessarily, but they have a much better chance than an unprepared applicant and lawyer. Take care, Jason