When An Amended Asylum Application Is A New Application
Author: New York Asylum Attorney Alena Shautsova
When one files an application with the USCIS or court, one commits an important act of securing a deadline and a filing date, and also availing himself to the laws and regulations that are in effect on the date of filing. It means that the act of filing of an application has serious consequences for the applicant which must be taking into consideration when a person would like to amend his/her filings.
Often, an applicant for asylum wishes to amend their filings. Sometimes, a person has changes in the family that were caused my marriage or birth of children; sometimes, a person would like to clarify certain points or correct mistakes. Usually, the amendments are submitted by counsel after the case is referred to a judge, or if a new attorney comes into a case and sees that the previous filing was deficient. The regulations state that an asylum officer or Immigration Judge may permit an asylum applicant “to amend or supplement” the application upon request of the alien and as a matter of discretion. 8 C.F.R. §§ 208.4(c)
The question, however, is if the amendments can turn already filed application into a new application? The question is an important one, because a new application will have a different filing date and might cause applications of different (if changed) laws.
This question was answered by the Board of Immigration Appeals in their recent decision Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015). The BIA held that an amended application would be considered a new one if it presents new basis for relief or the same basis of relief is predicated on a new or substantially different facts. For an amended application not be considered new application, it has to only slightly alter the facts or simply clarify some information presented earlier.
It would seem to be not such an important issue if it did not have a devastating affect for all those who with new application would be found to miss the one year asylum filing deadline. In the above cited case for example, the BIA found that respondent’s subsequent application was a new application because he changed the facts so drastically that they altered his whole story. Another issue in that case was the first asylum application was filed by the respondent with the help of one of the “consultants” who were filing fraudulent asylum claims, and attended interview under the pretense of an interpreter. That “interpreter” individual was later investigated by the government together will of his “works” and the respondent’s case as well. It is not a surprise, that after this fact became known, the judge did not believe a word the respondent said...
The moral of the story here is that an Immigration filing is an important thing with serious consequences. The Immigration process is a serious process, and one who carelessly amends an application or files several forms without regard to the substance risks losing the benefits too soon...