Can I File My Asylum Application After the One Year Deadline?

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Can I File My Asylum Application After the One Year Deadline?

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....

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Can I File My Asylum Application After the One Year Deadline?