Recent questions posted on AILA about the one year clock and exceptional circumstances.
I recently answered two questions on thee AILA member board, and thought I would share both the questions and the answers here. Although these were aimed at practitioners, the answers may also be helpful to folks desiring more information on the law and how to find answers.
1) Can anyone recommend a resource for learning about standards or cases involving changed circumstances or extraordinary circumstances for late filing of asylum applications?
Your best friend is Google and the AILA document repository. If you don’t belong to the AILA-NET/LINK whatever that is (alludes me at the moment), ask another member to run a search for you and see if there is a hit. Regardless, anything worth knowing lives on Google, and as you get more experience, you’ll post information on Google, too. Regardless, in answer to your 1st question, is it depends. Haha. Right, it depends on the circuit in which you find yourself. Your question is one of last resort – meaning that the controlling doctrine will be issued by the appeals court in the area you practice. In mine, for example, it’s the 4th circuit. Go to Lexis and look up 4th circuit cases dealing with asylum and changed country conditions. Ditto for Google. Do not be fooled by BIA – BIA is not controlling in cases of last resort. They are bound by the appeals court, too. If and only if you can find no controlling holding on an appeals case, then you go to search BIA decisions. Fortunately, BIA decisions are also on Lexis (and West, too), and many are on Google. Moral of the story --- search for controlling cases in your jurisdiction (federal appeals level).
2) If a person is in lawful immigration status when they apply for asylum then does the one year filing deadline still apply?Answer:
Yup. One year deadline is not predicated on status. It is predicated on the clock. The asylum clock is a nasty beast, and there is extensive literature on when the clock starts and stops. You may have heard of the term “lodging an asylum application.” This refers to sneaking a package into the clerk when a defensive asylum is at risk of crossing the 1 year mark. Worse still, if the matter is not heard before the judge before the 1 year mark, it is considered late when the trial occurs (i.e. outside the filing window), and the judge will have to permit it to move forward and waive the 1 year window. Be prepared to file a motion too advance your hearing, on grounds of the 1 year window, before that happens. If you do, and the judge does not so advance, you have an excellent argument for waiving the 1 year window requirement when you are finally heard. I realize that was not the genesis of your question – but if you’ve not faced that before (1 year window while in court), file it away for a rainy day. Can save a lot of embarrassment. Back to your original question – the clock starts the moment you arrive, and only stops on certain specific events (usually delineated in the code, or placed on the record by the judge). These reasons are far between (for example, an appeal of a specific action in the asylum matter will often “stop the clock”), so you can pretty much assume, if you’ve passed the 1 year mark from the date of arrival, you’re out of the window.
For additional information on the one year clock (there was some debate on this within the AILA group), see: http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf. This is a training manual for DHS/ICE and the immigration court staff on how to handle asylum applications. Specifically, the discussion on page 4 is instructive:
From the Asylum Training Manual:
Any asylum applicant who applied for asylum on or after April 1,1998 (or April 16, 1998, for those applying affirmatively), must establish that he or she filed for asylum within one year from the date of last arrival or establish that he or she is eligible for an exception to the one-year filing requirement. If an applicant fails to establish either timely filing of the application or that an exception applies, the application must be referred to the Immigration Court. Only an asylum officer, immigration judge or the Board of Immigration Appeals (BIA) is authorized to make this determination. The determination may be made only after an interview with an asylum officer or hearing before an Immigration Judge.
Do you need help with an asylum question (either affirmative or defense) or attempting to prove exceptional circumstances for a late asylum filing? Contact us! We can help and have had great success. 703-402-2723.
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