8 CFR 208.14 Asylum Referral to Immigration Court, Explained

Under 8 CFR 1208.14, an asylum officer who does not grant asylum must deny, refer, or dismiss the application. When the applicant appears inadmissible or deportable, the officer generally refers the case to an immigration judge. This guide explains what that referral does, what it starts, and what to check on your paperwork. It is general information, not advice about your own case. Adriana Gomez is the responsible lawyer for this page.

What 8 CFR 208.14 Covers

8 CFR 208.14 tells asylum officers what happens when asylum is not granted after an interview, when an application is referred without an interview, or when the applicant is deemed to have waived the interview. The rule states that the asylum officer shall deny, refer, or dismiss the application as follows: 8 C.F.R. § 208.14. The companion text in 8 CFR 1208.14 states that the asylum officer shall deny, refer, or dismiss the application, as follows.

The rule links two systems. USCIS has initial jurisdiction over asylum applications. 8 C.F.R. § 1208.14 reads: “In any case within the jurisdiction of USCIS, unless otherwise prohibited in § 1208.13(c), an asylum officer, subject to review within USCIS, may grant, in the exercise of his or her distraction, asylum to an applicant who qualifies as a refugee under section 101(a)(42) of the Act, and whose identity has been checked pursuant to section 208(d)(5)(A)(i) of the Act.” For applicants served a Form I-862, Notice to Appear, an immigration judge has exclusive jurisdiction over the asylum application once the charging document is filed with the Immigration Court, as 8 CFR 1208.2 explains.

Compare your notice with this text. Note which of the three outcomes it describes.

When an Asylum Officer Refers a Case to Immigration Court

An asylum officer refers a case when the applicant appears inadmissible or deportable and asylum is not granted. The officer then sends the application to an immigration judge with the appropriate charging document. If charging documents may not be issued, the officer dismisses the application instead. 8 CFR 208.14 sets out this path.

A more direct path exists for certain applicants. Under 8 C.F.R. § 208.14, this route applies only to an applicant who was paroled into the United States on or after April 1, 1997 without advance authorization, whose parole has expired or been terminated, and who is an arriving alien or is otherwise subject to removal under 8 C.F.R. § 235.3(b). For such an applicant who appears inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act, and is found to have a credible fear of persecution or torture based on information elicited from the asylum interview, an asylum officer may refer the applicant directly to an immigration judge in removal proceedings under section 240 of the Act. This applies when the officer does not plan to add other charges of inadmissibility. 8 CFR 1208.14 covers this route.

Status matters too. If you hold valid immigrant, nonimmigrant, or Temporary Protected Status when the application is decided, the officer shall deny the application for asylum.

Each case turns on its own facts, so check which path your notice follows. A referral and a denial lead to different next steps.

How the Asylum Application Is Treated After Referral

After a referral, an immigration judge decides the asylum claim inside removal proceedings. The judge may grant or deny asylum in the exercise of discretion to an applicant who qualifies as a refugee, unless otherwise prohibited in § 1208.13(c). The judge cannot grant asylum until the identity, law enforcement, and security requirements in § 1003.47 are met, as 8 CFR 1208.14 states.

The judge looks at whether your testimony is credible and whether it refers to specific facts. The judge also weighs other evidence in the record. Section 1229a addresses the burden of proof for an alien applying for relief or protection from removal.

Keep a complete copy of your Form I-589 and every document you filed with it. Keep a dated file of everything you receive from USCIS or the court. Bring that file to every hearing.

The Notice to Appear and the Immigration Court Process

A charging document, such as a Notice to Appear, starts removal proceedings. The notice must be given in person, or by mail if personal service is not practicable. It must state the time and place of the proceedings, as 8 U.S.C. § 1229 requires.

The first hearing cannot be set earlier than 10 days after the notice is served. You can ask in writing for an earlier date. The 10-day rule gives you time to secure counsel.

At the end of proceedings, the immigration judge decides whether you are removable. The judge bases that decision only on the evidence produced at the hearing.

Withholding of removal and protection under the Convention Against Torture are separate requests. An immigration judge may decide asylum and withholding together, whether or not asylum is granted. For Convention Against Torture protection, the judge first asks whether you are more likely than not to be tortured in the country of removal. 8 CFR 1208.16 covers both points.

What to Check on Your Referral Paperwork

Start by checking the court name, hearing date, hearing time, and address on your Notice to Appear. The notice must also list the address of the Immigration Court. It must tell you to keep the court informed of your current address and telephone number, and that failure to provide such information may result in an in absentia hearing, under 8 CFR 1003.15. Check your A-number and the spelling of your name too.

Address rules are strict. If the address on the notice is missing or wrong, you must give the court written notice of an address and telephone number within five days of service. After that, file Form EOIR-33 within five days of any change. 8 CFR 1003.15 lists what the Order to Show Cause and Notice to Appear must include, such as notice that you may be represented, at no cost to the government, by counsel or another authorized representative.

If you are required to register, report each change of address to USCIS within 10 days. 8 CFR 265.1 sets this rule.

Missing a hearing can end your case quickly. Failure to appear without prior authorization may lead to dismissal of the application and an order of removal in absentia. 8 CFR 1208.10 describes this risk.

Appeal deadlines are short.

Talk Through Your Referral With the Firm

If you’re holding a referral notice, a Notice to Appear with a date you don’t understand, and a decision to make before that hearing, you’re in a hard spot. Read the questions below first, then reach out.

Does a referral mean my asylum case was denied?

A referral is not a denial. Under 8 C.F.R. § 1208.14(c)(1), when an applicant appears to be inadmissible or deportable, the asylum officer refers the application to an immigration judge, together with the appropriate charging document, for adjudication in removal proceedings (or dismisses it where charging documents may not be issued), except for applicants described in paragraph (c)(4)(ii) who have not already been through proceedings under 8 CFR 235.3. The judge can still grant or deny asylum in the exercise of discretion to an applicant who qualifies as a refugee under section 101(a)(42) of the Act, unless otherwise prohibited in § 1208.13(c), but cannot grant asylum without compliance with the requirements of § 1003.47 concerning identity, law enforcement, or security investigations or examinations.

How soon can my first hearing be set?

The first hearing cannot be set earlier than 10 days after service of the notice. You can request an earlier date in writing, as 8 U.S.C. § 1229 provides.

Do I have to update my address?

Yes. If the address on your notice is missing or wrong, give the court written notice within five days of service. Report later changes on Form EOIR-33 within five days.

You can call the office, send a message through the contact form, or write on WhatsApp to talk about your notice. Consultations with the firm are paid. AG Immigration Law P.A. focuses on removal defense, adjustment of status, family petitions, naturalization, removal of conditions on green cards, waivers, and BIA appeals. Adriana Gomez is the responsible lawyer for this page.