Exceptions to the One-Year Asylum Filing Deadline
In addition to meeting the two threshold requirements for asylum (physical presence in the United States and satisfying the definition of a “refugee”), asylum applicants must also follow a strict one-year filing deadline. If the strict filing deadline is not followed, then applicants cannot be granted asylum.
However, two statutory exceptions exist that may excuse a delayed filing of an asylum application: (1) changed circumstances and (2) extraordinary circumstances. If either exception applies, the asylum applicant must file their application within a reasonable time.
This article will provide an overview of the one-year filing deadline as well as an explanation of both exceptions.
One-Year Filing Deadline
Asylum applicants must establish that their asylum application was filed within one year of their last arrival to the United States.
Affirmative asylum applicants file their applications with U.S. Citizenship and Immigration Services (“USCIS”). These applications are considered filed when the appropriate USCIS Service Center receives the application. Defensive asylum applicants request asylum as a form a relief while in removal proceedings. These defensive applications are reviewed by the Executive Office for Immigration Review (“EOIR”) and are deemed filed as soon as the application is filed with the court.
To determine whether an asylum applicant complied with the one-year filing deadline, the applicant’s last date of entry must be established. Asylum applicants must be prepared to establish by clear and convincing evidence that they satisfied the one-year filing deadline. Clear and convincing evidence does not need to be conclusive, but rather it should create a firm belief of truth.
In order to demonstrate that the applicant complied with the one-year filing deadline, the applicant must show by clear and convincing evidence that:
- Their last date of arrival to the United States was within the one-year filing period, or
- The applicant was outside of the United States as some point during the year immediately before the application was filed.
There are several types of evidence that may satisfy the clear and convincing standard:
- certified mail receipt
- documentary evidence such as passports and rental agreements
If the testimony is credible, then testimony alone may be sufficient to meet the clear and convincing standard.
When an asylum applicant is unable to demonstrate compliance with the one-year filing deadline, then their request for asylum is rejected. However, they may be excused from a delayed filing if one of the two exceptions apply.
Exception 1: Changed Circumstances Exception to the One-Year Filing Deadline
The one-year filing deadline may be excused if the applicant’s circumstances have changed and now materially impact the applicant’s eligibility for asylum. The changed circumstances could occur years after the applicant’s last arrival in the United States.
Examples of changed circumstances include changes in:
- The conditions of the applicant’s home country (i.e., regime changes, new hostilities to specific groups of people, or a new humanitarian crisis)
- U.S. laws that relate to the applicant’s eligibility for asylum
- The applicant’s activities since leaving their home country that may now place the applicant at greater risk in their home country (i.e., converting to a new religion)
- A dependent’s attainment of age 21
- A dependent’s changed relationship to the parent or spouse applicant (i.e., death or marriage)
This list is not exhaustive, and each asylum applicant’s situation is reviewed on a case-by-case basis.
The asylum applicant bears the burden to establish that the changed circumstances are material to his or her asylum eligibility. However, asylum officers must affirmatively produce information that is useful to determining the applicant’s eligibility, including eliciting information on the applicant’s changed country conditions.
Exception 2: Extraordinary Circumstances Exception to the One-Year Filing Deadline
The one-year filing deadline may also be excused if the applicant has extraordinary circumstances that relate to the delayed filing. The extraordinary circumstances must directly relate to the failure to comply with the one-year filing deadline, and thus must occur during the original one-year filing deadline period.
The asylum applicant must demonstrate to the relevant adjudicator (either an asylum officer, immigration judge, or Board of Immigration Appeals) that:
- The applicant did not intentionally create the extraordinary circumstances;
- The circumstances were directly related to the applicant’s failure to comply with the one-year filing deadline; and
- The applicant’s delay was reasonable based on the extraordinary circumstances present.
There are many extraordinary circumstances that may excuse the filing delay. For example, if any of the following occurred during the one-year time frame after arrival, the delay may be excused:
- Serious illness
- Mental or physical disability (including disability resulting from prior persecution)
- Mental impairment or other legal disability
- Applicant was an unaccompanied minor
Other examples of extraordinary circumstances include:
- Ineffective assistance of counsel
- Applicant had Temporary Protected Status until a reasonable period before the filing
- Applicant had lawful immigrant or nonimmigrant status until a reasonable period before the filing
- Applicant was given parole until a reasonable period before the filing
- Applicant’s legal representative or immediate family member died or suffered a serious illness
- Applicant’s timely filed asylum application was rejected, returned for corrections, and refiled in a reasonable time period
Delays resulting from backlogs in immigration courts may also constitute extraordinary circumstances because they are outside of the asylum applicant’s control.
These examples are not exhaustive, and each asylum applicant’s situation is reviewed on a case-by-case basis.
Once an applicant’s circumstances have materially changed, the applicant must file an asylum application within a reasonable time period. Likewise, in order for the extraordinary circumstances exception to apply, the asylum applicant must file within a reasonable time period under the extraordinary circumstances.
What exactly constitutes a reasonable time?
A reasonable time differs in every case –– therefore, the facts of each matter are reviewed on a case-by-case basis. Asylum officers attempt to determine whether a reasonable person under the circumstances would have filed around the same time as the applicant. Factors such as the asylum applicant’s education, long-lasting effects of illness, and when the applicant knew of the changed circumstances may all be considered when determining whether the application was filed in a reasonable time.
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Resources on the One-Year Asylum Filing Deadline
We provide the following resources on the one-year asylum filing deadline
- The One-Year Filing Deadline (Immigration Equality)
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— Jeffrey K. Traylor, Attorney at Law