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One in five refugees seeking protection in the United States is denied asylum because they do not apply within one year of their arrival and miss the 12-month deadline imposed by Congress.

Enacted in 1996, the one-year filing deadline requires asylum seekers to establish by “clear and convincing” evidence that their asylum applications were filed within one year of their arrival in the United States, or demonstrate that their applications were delayed due to changed or extraordinary circumstances. Asylum seekers who cannot meet these requirements, even if they are refugees with well-founded fears of persecution, are barred from asylum protection and face deportation to the countries from which they fled.

Although Congress asserted that this law was not intended to bar legitimate asylum seekers from obtaining protection, bona fide asylum seekers frequently miss the one-year deadline because they do not have access to legal information or resources they need to submit their applications less than a year after they flee to the United States. Many spend their first months or years in the United States consumed with their survival and that of their loved ones. Some do not speak English and encounter language barriers to understanding complex immigration laws. Others, particularly those who fled countries where they were targeted for persecution because of their sexual orientation or gender identity, do not realize that asylum protection is available for people in their situations until they have lived in the United States for many years.

Individuals barred from asylum based on the one-year deadline may still be eligible for withholding of removal and relief under the Convention Against Torture, but these forms of relief offer very limited benefits beyond protection from removal.  As a result, attorneys representing asylum seekers with one-year deadline issues should preserve all possible arguments regarding asylum eligibility.  NIJC pro bono attorneys are strongly encouraged to consult with NIJC regarding these arguments before filing their asylum application materials with the asylum office or immigration court.

Only legislative repeal of the one-year deadline will ensure that refugees are not denied protection based on a technicality. NIJC works to convince members of Congress to end the one-year deadline bar, and urges the U.S. Attorney General to take interim steps that would expand exceptions to the deadline and require immigration judges to consider more circumstances that justify delayed filings.  In the meantime, NIJC regularly participates in litigation at the Board of Immigration Appeals and U.S. Courts of Appeal related to the one-year deadline.  Please see the links below for examples of some of NIJC's litigation efforts related to the one-year deadline.  NIJC pro bono attorneys representing clients with one-year deadline issues before the asylum office or immigration court can also sample briefs in the registered users section of the website.

 

Alfaro Garcia et al v. Jeh Johnson et al
Alfaro-Garcia et al., v. Johnson et al. No. 14-CV-01775 (N.D. Cal. April 17, 2014) Background: Individuals in DHS custody with final orders of removal – whether because of a prior removal order or because of a summary removal order pursuant to 8 U.S.C. § 1228(b)(3) – are summarily deported…
Malu v. U.S. Attorney General
Biuma Malu was granted withholding of removal after a protracted legal challenge that included the filing of a petition for certiorari to the Supreme Court. Ms. Malu is a gender nonconforming lesbian from the Democratic Republic of Congo (DRC) who fled to the United States after her parents sold…
F.H.-T. V. HOLDER
F.H.-T. v. HOLDER June 2, 2014 F.H.-T. (a pseudonym used to protect him and his family) has asked the Supreme Court to overturn the Government’s process for deciding exemptions from the so-called “terrorist bars” which precluded him from obtaining asylum.  F.H.-T. is an Eritrean man whom…

Recommendations

Congress must repeal the filing deadline to ensure that refugees are not denied protection based on a technicality. The deadline is unnecessary, arbitrary, and a violation of the U.S. government’s commitments to refugees’ basic human rights.

In the interim, DOJ and DHS should pursue the following administrative measures:

1. DOJ should provide increased training for immigration judges on issues such as persecution-induced psychological problems and sexual orientation and gender identity, as these issues often are central to determining whether an applicant can establish an exception to the deadline.

2. DOJ should immediately adopt Asylum Office guidance that lists additional circumstances that can constitute statutory exceptions to the deadline, beyond those listed in the regulations.

3. DOJ and DHS should clarify that adjudicators cannot merely state that a claimed deadline exception’s absence from the regulatory list is adequate reason to deny asylum.

4. DOJ and DHS should consider expanding the regulatory list of sample circumstances that amount to exceptions to the deadline, in light of evolving experience since the implementation of the current regulations more than 10 years ago. DOJ and DHS should give particular consideration to whether individuals who were reasonably unaware of potential eligibility for asylum protection can demonstrate an exception to the deadline.

5. DOJ should clarify that asylum seekers who testify credibly about their dates of arrival should not be barred from asylum under the “clear and convincing evidence” requirement, as the Asylum Office recognizes.

Consistent with the U.S. government’s historic commitments, the Attorney General must ensure, to the maximum extent allowable under law, that people seeking protection are not deported to countries where they will face persecution.

 

Implementing these recommendations, based on a renewed commitment from United States agencies and lawmakers to fair and deliberative process, would help ensure that refugees are not denied protection because of a technicality.