Applying for asylum: the one-year filing deadline
Asylum is a form of protection that the U.S. government affords to foreign nationals who have a “well-founded fear” to return to their home country based on race, religion, nationality, political opinion or membership in a particular social group. Before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, a person could apply for asylum at any time. However, the IIRIRA created a new eligibility requirement that those applying on or after April of 1998 must apply within one year of their last arrival in the United States. There are two ways of applying for asylum: affirmatively and defensively. An affirmative asylum application is to be presented to USCIS (United States Citizenship and Immigration Services), which is an agency in the Department of Homeland Security (DHS). On the other hand, defensive asylum can only occur when the applicant is in removal proceedings. Therefore, it has to be presented to an Immigration Judge at the Executive Office for Immigration Review (EOIR), which is part of the Department of Justice (DOJ). In both affirmative and defensive asylum filings, an application for asylum should be filed within one year of the applicant’s last arrival to the U.S. The applicant has the burden of proving by clear and convincing evidence that the application has been timely filed. An asylum application is considered “filed” on the date it is received by the USCIS or the EOIR. For affirmative asylum filings, if an application has not been received by the USCIS within one year from the applicant’s date of entry but the applicant provides clear and convincing documentary evidence of mailing the application within the one-year period, the mailing date can be considered the filing date.
What if an applicant missed the one-year deadline?
Many applicants are unaware of the one-year filing deadline, and may miss the opportunity to apply on time. However, the one-year filing deadline is subject to two exceptions: changed circumstances and extraordinary circumstances. Therefore, under current asylum law, to prevail on an asylum application filed more than one year after arriving in the U.S. the applicant must demonstrate either “changed” or “extraordinary” circumstances. In addition, the applicant must also prove that the asylum application was filed within a “reasonable period of time” given said changed or extraordinary circumstances.
What are “changed circumstances”?
The first exception to the one-year filing deadline is the existence of changed circumstances which materially affect the applicant’s eligibility for asylum. Federal regulations provide a non-exhaustive list of changed circumstances, which include:
- Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, last habitual residence;
- Changes in the applicant’s circumstances that materially affect his or her eligibility for asylum, including changes in applicable U.S. law and changes in personal circumstances; and
- In case the applicant was previously included as a dependent in another applicant’s pending asylum application (for example as a spouse or child), the loss of the spousal or parent-child relationship to the primary applicant through marriage, divorce, death, or attainment of age 21.
What are “extraordinary circumstances”?
The second exception to the one-year filing deadline is the existence of extraordinary circumstances related to the delay in applying for asylum. The term “extraordinary circumstances” refers to events or factors that directly prevented the applicant from filing on time. The applicant must demonstrate that he or she has not created or caused the circumstances. Federal regulations provide a non-exhaustive list of extraordinary circumstances, which include:
- 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 during the 1-year period after arrival (i.e., the applicant was a minor or suffered from a mental illness or impairment);
- Ineffective assistance of counsel;
- 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 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 does “reasonable period of time” mean?
As mentioned above, after demonstrating the existence of changed or extraordinary circumstances, the applicant must also show that he or she filed for asylum within a reasonable period of time given those circumstances. Courts have indicated that a “reasonable period of time” generally means six months, and that taking more than six months to file given the changed or extraordinary circumstance may be unreasonable. However, there is not a set rule, and the determination of “reasonableness” is made on a case-by-case basis according to the totality of circumstances. Asylum adjudicators usually take into account the particular facts of the case and may consider factors such as education and level of sophistication of the applicant, the amount of time it takes to obtain legal assistance, any effects of persecution and/or illness, the time the applicant became aware of the changed circumstance, and any other relevant factors. As a practical matter however, asylum adjudicators tend to interpret the “reasonable period of time” in a restrictive manner.
In sum, under current asylum law an applicant has the burden of proving that the application has been filed within one year of the last arrival in the U.S. or that he or she qualifies for an exception. However, establishing proof that an exception to the asylum one-year filing rule applies can be difficult, and it is the applicant’s responsibility to provide evidence related to the timing of the application and that the application was filed within a reasonable period of time. Therefore, it is always advisable to seek the counsel of an immigration attorney before filing an application for asylum, as the asylum process can be long and complicated and may result in removal from the United States.