Can I File My Asylum Application After the One Year Deadline?
Author: asylum lawyer Alena Shautsova
Normally, an application for asylum should be filed within one year of applicant's last arrival to the United States. INA § 208(a)(2)(B). The 1-year period shall be calculated from the date of the alien's last arrival in the United States or April 1, 1997 whichever is later, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The applicant has the burden of proving by clear and convincing evidence that the application has been filed within 1 year of the date of the arrival in the United States. Also, applications with a filing date on or before April 15, 1998, are not subject to the one-year filing deadlines implemented by the Asylum Division. Although April 1, 1998, is the effective date provided by regulation for those who arrived before April 1, 1997, the then-INS extended an administrative 14-day grace period for applications filed with the INS. This 14-day period only applies to those applications filed in the first 15 days of April, 1998. The Asylum Division now calculates the day of arrival as "day zero." Important, that the Second Circuit has held that the one-year deadline for applying for asylum does not restart if the alien's "last arrival" in the United States is the result of a brief trip abroad pursuant to advance parole. See Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006). This holding applies to cases in the Second Circuit, (New York!) where the alien took a temporary trip abroad pursuant to a grant of advance parole.
An asylum application, Form I-589 is considered to have been filed on the date it is received by the Citizenship and Immigration Services or Court. If the application was mailed within the one-year period but was not received by USCIS within that period, the mailing date will be considered the filing date if the applicant proves by clear and convincing documentary evidence that the application was mailed within the required time period. However, if the application is filed with the Immigration Judge ("IJ"), the filing date is the date when the IJ receives the application. INA § 208(a)(2)(B)(ii). The proof need not be "conclusive" or "unequivocal;" if put on a scale, the clear and convincing standard would be somewhere between the "preponderance of evidence" standard (greater than 50% standard, or "more likely than not") and the "beyond a reasonable doubt" standard used in criminal trials. Asylum officers should avoid trying to place the clear and convincing standard on a particular point on a percentage scale. Clear and convincing evidence does not fall precisely on any point between the "preponderance of evidence" standard and the "beyond a reasonable doubt" standard. Instead, it is the degree of evidence necessary to create a firm belief that the asserted fact is true.
What if an applicant missed the one year deadline? In this case, an applicant should demonstrate that there are changed circumstances or extraordinary circumstances relating to the delay in filing the application. The applicant, however, only needs to demonstrate that it is reasonable for the Asylum Officer or Immigration Judge to conclude that the exception applies under the circumstances. The application must still be filed within a reasonable period of time after the changed circumstances or extraordinary circumstances occur in order to warrant an exception to the one-year bar. For the changed circumstances the "reasonable time" may start running from the time the applicant learned about the changes: this determination is done by the Asylum Office or Immigration Judge.
First, the "changed circumstances" must occur on or after April 1, 1997.
Second, the law provides for a NON EXCLUSIVE list of "changed circumstances" in 8 CFR 208.4. These are the circumstances that materially affect the applicant's eligibility for asylum. They may include, but are not limited to:
- Changes in conditions in the applicant's country of nationality or, if the applicant is stateless, country of last habitual residence;
- Changes in the applicant's circumstances that materially affect the applicant's eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or
- In the case of an alien who had previously been included as a dependent in another alien's pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.
Unlike a changed circumstance, because an extraordinary circumstance must directly relate to the failure to file, it must occur during the period when filing would be timely for an exception to exist. Circumstances such as those listed below that take place outside of the one-year filing period may be considered when determining whether an application was filed in a reasonable period of time where there has been a changed or extraordinary circumstance identified that could give rise to an exception.
The term "extraordinary circumstances" is also explained by the immigration law in the NON EXCLUSIVE list:
- Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;
- Legal disability ( e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;
- Ineffective assistance of counsel, provided that:
- The alien files an affidavit setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard;
- The counsel whose integrity or competence is being impugned has been informed of the allegations leveled against him or her and given an opportunity to respond; and
- The alien indicates whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not;
- The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
- The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and
- The death or serious illness or incapacity of the applicant's legal representative or a member of the applicant's immediate family.
What is a reasonable period of time to file asylum application in case an applicant lost his lawful immigrant or nonimmigrant status? The case law on issue says that "Clearly, waiting six months or longer after expiration or termination of status would not be considered reasonable." Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008). However, the determinations of reasonableness are made on a case-by-case basis. Although the totality of circumstances in the case determines what is considered a reasonable period of time, guidance offered by the Department of Justice states that more than a six-month delay would usually be considered unreasonable.
Finally, the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 amended the INA to state that the one-year filing deadline does not apply to unaccompanied alien children. As of March 23, 2009, the effective date of the TVPRA, when an asylum officer determines that a minor principal applicant is unaccompanied and out of status, the asylum officer should forego the one-year filing deadline analysis and conclude that the one-year filing deadline does not apply.
1For aliens present in or arriving in the Commonwealth of the Northern Mariana Islands, the 1-ye ar period shall be calculated from either January 1, 2015, or from the date of the alien's last arrival in the United States (including the Commonwealth of the Northern Mariana Islands), whichever is later. No period of physical presence in the Commonwealth of the Northern Mariana Islands prior to January 1, 2015, shall count toward the 1-year period. After November 28, 2009, any travel to the Commonwealth of the Northern Mariana Islands from any other State shall not re-start the calculation of the 1-year period. (Amended effective 11/28/09;)