Why Does ICE Appeal Asylum Cases You Already Won — And How to Prepare?

Winning an asylum case in immigration court feels like the finish line. But for most immigrants, it is only the beginning of the next round. Government prosecutors routinely appeal asylum grants — and understanding why this happens, and how to be ready for it, can make the difference between keeping your protection and losing it on appeal.

What the Attorney Says

Immigration attorney Ilya Fishkin, who has practiced immigration law for over 20 years and is a member of the New York Bar, is direct about the reality: nearly every asylum case that is won by the applicant gets appealed by the government prosecutor. In his words, approximately 98% of cases go to appeal. It is not a matter of the prosecutor personally disagreeing with the judge's decision — they have simply been instructed to appeal. "They were told to file an appeal — that's it," Fishkin explains.

This means that winning in immigration court is not the end of the road. The case moves to a higher review body, and everything that was presented before the immigration judge will be scrutinized again. If the original case was not built carefully and thoroughly, weaknesses that seemed minor at the lower level can become decisive on appeal.

That is why Fishkin stresses the importance of preparation — and specifically, preparation that happens before the hearing, not after. "The better the case is prepared — prepared yesterday, not tomorrow, not the day after tomorrow, but already ready — the better the person's chances of surviving all of this," he says. The message is clear: a case that is assembled at the last minute is a case that is vulnerable, not just at the initial hearing, but through every stage of appeal that almost certainly follows.

What You Should Do

Based on attorney Fishkin's guidance, the core takeaway is about the mindset and timing of preparation. Here are the practical steps that follow from his advice:

• Treat your case as if an appeal is guaranteed. Because statistically it almost certainly will be appealed, every detail in your application, declaration, and supporting documents matters from day one. Do not assume a favorable judge's decision will be the final word.

• Prepare thoroughly and early. Fishkin's emphasis on having the case "already ready" — not scrambling at the last moment — means you should work with your attorney well in advance of your hearing. The record built for the immigration judge is the same record that will be reviewed on appeal. There are no do-overs.

• Pay close attention to details. Fishkin specifically warns about the importance of being careful with the particulars of your case. Inconsistencies, gaps, or vague statements that might be overlooked at a hearing can be highlighted and used against you at the appellate level.

• Work with an experienced immigration attorney. Given the near-certainty of an appeal, having qualified legal representation who understands both the hearing and appellate process is critical.

Frequently Asked Questions

Q: Does the government appeal every asylum case that immigrants win? A: According to attorney Fishkin, approximately 98% of asylum cases that are won by applicants are appealed by the government prosecutor. It is extremely rare for the prosecutor not to appeal.

Q: Why does the prosecutor appeal even when the judge ruled in my favor? A: Fishkin explains that prosecutors are simply instructed to file appeals — it is a directive they follow, not necessarily a personal judgment about the merits of your individual case.

Q: What is the most important thing I can do to protect my asylum case against an appeal? A: According to Fishkin, the most important factor is thorough, early preparation. A case that is carefully built before the hearing — with attention to every detail — gives you the best chance of withstanding appellate review.

Based on an interview with immigration attorney Ilya Fishkin, NY Bar. This information is for general purposes only and is not legal advice.