The Candid Review: A Blog About Appeals

CNS News is reporting this week that a judge with the federal Arlington Immigration Court is setting the date for illegal minor aliens to return to court four years from now, in 2018, a point in the future when many of these young people will already have reached the age of eighteen.

At a time when at least 11.3 million unauthorized immigrants are living in the U.S. – about 775,000 of these illegal immigrants are children –Judge John Milo Bryant has given at least three of the illegal minors four years to return to court and plead their case for asylum to the United States. Generally, when an attorney in his or her asylum case represents an illegal alien, asylum to the U.S. is granted.

What is the difference between a legal alien and an illegal alien? What is asylum? And when does asylum grant an alien the ability to remain in the U.S. permanently?

Legal Alien vs. Illegal Alien

Generally, an alien is someone who is a foreigner to the U.S. An alien is not a naturalized citizen of the U.S. and thus is not afford all the rights and protections of a U.S. citizen. An immigrant is someone who comes to the U.S. to live permanently. Often, the terms alien and immigrant are used interchangeably (as the terms are used here), however, the terms can be categorized further as legal and illegal.

A legal alien is someone who has been authorized to enter and reside in the U.S. for a period of time. A legal alien has been properly inspected prior to crossing the border but has not obtained citizenship. Such a person is afforded a visa and may remain in the U.S. until their visa has expired or is renewed. While here, a legal alien must obey all laws, must submit to the jurisdiction of the courts and may legally work.

An undocumented or illegal alien is someone who has entered the U.S. without authorization. An illegal alien has not been properly inspected at the country’s border and there is no documentation that he or she has entered the county. Further, a legal alien may become an illegal alien if he or she remains in the country after their visa has expired. An illegal alien has no right to work legally in the U.S.

Illegal minor aliens are often brought into or sent over the border of the U.S. by their parents. Once here, a minor illegal child is afforded the same right of equal access to elementary and secondary public schools as a minor citizen child, despite the minors parents legal status or country of origin.

Achieving Asylum to the U.S.

Asylum is protection afforded by a government to someone who has left his or her country of origin to escape being harmed. The U.S. may grant an illegal minor alien the ability to stay in the country when the minor can show the immigration court that returning to their own country will compromise their safety in some way. By way of example, recently, The New York Times reported that women who are victims of domestic violence in their own country might be granted asylum in the U.S.

A U.S. immigration court may grant a minor, or anyone, asylum if the person can establish that they have suffered or fear suffering persecution in their own country based on their race, religion, nationality, or political opinion. Achieving asylum in the U.S. can take time but is a relatively organized process. An alien can achieve asylum through an affirmative or a defensive process.

In order to qualify for the affirmative process, the alien must be physically present in the U.S., however, it does not matter how the alien arrived. Within a year of the alien’s arrival, he or she must file with the U.S. Citizenship and Immigration Services and also file a Form I-589, or Application for Asylum and for Withholding of Removal with that office. While their application is winding its way through the government and court system, an alien may remain in the U.S. but generally may not legally work. An affirmative application is processed in a non-adversarial manner.

The defensive asylum process is available only to those aliens who already are in the process of being removed from U.S. for some reason. If the alien’s defensive application is granted, they will be protected against deportation. The defensive process is adversarial and conducted in front of an immigration judge. The judge will hear arguments from both the government and the alien before ruling whether or not the alien is to be deported or granted asylum.

At Brownstone Law, we work specifically on appellate litigation. Our appellate attorneys are skilled in the areas of federal, criminal and civil appeals. Reach out to us today if you need help in your appeals case.