One of the major provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 is the requirement that all asylum applicants must apply within one-year of their last entry into the United States.
The statute specifically states that an asylum applicant must demonstrate “by clear and convincing evidence that the application has been filed within 1 year after the date of the [applicant’s] arrival in the United States.” 1 An asylum applicant can demonstrate that he is eligible for an exception to this rule if there are changed circumstances or extraordinary circumstances relating to the delay in filing the application. 2 The applicant only needs to demonstrate that it is reasonable for the Asylum Officer to conclude that the exception applies under the circumstances. 3 The application, however, 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. The one-year deadline only applies for asylum applications and not for withholding of removal or relief under CAT.
The one-year filing deadline is calculated from the date of the applicant’s last arrival in the United States. 4 An application is considered to have been filed on the date it is received by Citizenship and Immigration Services. If the application was mailed within the one-year period but was not received by CIS within that period, the mailing date will be considered the filing date if the applicant provides clear and convincing documentary evidence that the application was mailed within the required time period. 5
Final regulations regarding the one-year filing deadline were promulgated in December of 2000. 6 Notably, although the asylum regulations list specific situations that fall within the exceptions to the one-year deadline (see below), BIA precedent holds that an individualized analysis as to the facts of the case is still required even when the facts fit into one of the enumerated situations. 7 Another source of guidelines regarding the one-year deadline is the Asylum Officer Training Course released by the INS, although it is not binding law. 8
5.1 Appellate Review Jurisdiction
5.1.1 Prior to the Real ID Act
Until the recently enacted Real ID Act became law, federal courts did not have jurisdiction to review BIA decisions about whether an asylum applicant had met the changed or extraordinary circumstances exceptions for an untimely filing. 9 A few circuit courts had remanded some cases to the BIA when it was unclear on what grounds a denial of asylum was affirmed 10 or when the BIA had failed to make a determination regarding an exception to the one-year deadline when the issue had been raised by the applicant. 11 The only other means available for directly challenging one-year filing issues prior to the Real ID Act was through habeas corpus review under 28 U.S.C. §2241. The Supreme Court held in INS v. St. Cyr that although judicial review may be restricted by statutory provisions, matters of law through the habeas process are not similarly restricted unless there is an express statement of Congressional intent to preclude judicial review on habeas. 12 One district court found that the changed circumstances exception was reviewable on writ of habeas corpus on the basis of the Supreme Court’s ruling in St. Cyr. 13
5.1.2 After the Real ID Act
On May 11, 2005, the Real ID Act was signed into law. Among other things, the Real ID Act prohibits habeas corpus review of orders of removal, deportation and exclusion. 14 This provision removes the possibility of habeas corpus review of issues relating to the one-year filing deadline under 28 U.S.C. §2241, expressly disallowing the application of the St. Cyr holding to removal orders. The Act, however, does expand the jurisdiction of the federal Courts of Appeals to cover any issues involving constitutional claims or questions of law via petitions for review regardless of jurisdictional bars listed in the INA. 15 The statute specifically states that nothing in the INA “which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.” This provision essentially repeals the jurisdictional bar blocking review of decisions regarding one-year filing exceptions when a question of law is at issue.
Petitions for review are now the only means available to challenge a decision regarding the application of the one-year filing deadline. The petitions must be filed with the federal Court of Appeals of the relevant jurisdiction within 30 days of the final removal order. All petitions for review must be filed with the clerk’s office on or before the 30th day after the final removal, deportation or exclusion order. 16
Because the Real ID Act was enacted so recently, most of its provisions have not yet been interpreted by the courts, and the effect of the Real ID Act on the one-year filing deadline is still unclear. For example, it remains to be seen under what circumstances courts will interpret one year issues as purely legal issues versus factual issues which are apparently reviewable. Advocates will need to follow the Circuit Courts’ interpretation of the Real ID Act to find guidelines for bringing challenges to adverse one-year filing deadline decisions. 17
5.2 One Year Exceptions
In order to prevail on an asylum application when the applicant is filing more than one year after arriving in the United States, the applicant must demonstrate “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing the application within the [first year of entry.]” 18 Additionally, the applicant must prove that the application was filed within a “reasonable period of time” after the changed or extraordinary circumstance. 19
5.2.1 Changed Circumstances
An applicant may be granted asylum after missing the one-year deadline if she can demonstrate “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.” 20 Essentially this means that something has changed such that the applicant did not fear returning to his home country when he arrived in the United States and he now does fear returning. The application must be made within a reasonable period of time in light of the changed circumstances. 21 When determining what constitutes a reasonable period of time, an adjudicator must take into account whether the applicant had a delayed awareness of the occurrence of the changed circumstances. 22
According to the regulations, the following situations constitute changed circumstances:
- Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; or
- Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk.
- In the case of an applicant who had previously been included as a dependent in another applicant’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21. 23
The changed circumstances exception can be broken down into several more specific categories of changes which can warrant an exception to the filing deadline.
184.108.40.206 Change in Country Conditions
In the LGBT/H context, a changed country condition may include the criminalization of same-sex sexual activity or a change in the policies of the government such that anti-sodomy laws begin to be enforced. Additionally, adverse changes in country conditions such as a change to a repressive homophobic government regime may warrant a one year exception. Although there is little precedent in this area, asylum adjudicators have emphasized that the changed country conditions must have particular significance to the facts of the individual case. 24
220.127.116.11 Change in the Applicant’s Circumstances
Circumstances that may materially affect an applicant’s eligibility for asylum based on sexual orientation may include coming out as gay man or lesbian, becoming active in LGBT organizations or events, or being diagnosed with HIV. Although it is difficult to win an asylum application based solely on HIV-positive status, 25 there have been many successful claims which are based on both sexual orientation and HIV-positive status. A recent HIV diagnosis may qualify an applicant for a one year exception, particularly when there is severe discrimination or persecution of those with HIV in the applicant’s native country.
This exception is also the most important for transgender people who are in the process of transitioning. If a transgender applicant has recently taken medical steps to transition, such as hormone therapy, electrolysis, or sex reassignment surgery which she believes will increase her risk of persecution in her home country, she may qualify for a changed circumstances exception. 26
5.2.2 Extraordinary Circumstances
The second exception to the one-year filing deadline is the existence of extraordinary circumstances. The regulations state that extraordinary circumstances “shall refer to events or factors directly related to the failure to meet the one-year deadline.” 27 Essentially this means that something prevented the applicant form filing up until now. The applicant must also demonstrate that he has not created the circumstances through his own action or inaction. 28
The asylum adjudicator will conduct an individualized analysis of the facts of the case when determining if extraordinary circumstances excuse an untimely filing. The applicant will need to establish the following three requirements:
- Demonstrate the existence or occurrence of the extraordinary circumstances;
- Show that the circumstances directly relate to the failure to file the application within the given one-year period; and
- Demonstrate the delay in filing was reasonable under the circumstances. 29
The regulations list six categories of events or situations which will demonstrate the existence of extraordinary circumstances. These are:
- Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the one-year period after arrival; or
- Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the one-year period after arrival; or
- Ineffective assistance of counsel, (but see below for very specific requirements);
- 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; or
- The applicant filed an asylum application prior to the expiration of the one-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was re-filed within a reasonable period thereafter; or
- The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family. 30
18.104.22.168 Extraordinary Circumstances — Serious Illness or Mental/Physical Disability
An applicant’s serious illness or mental or physical disability during the one-year period will excuse an untimely filing. One circuit court has recognized post traumatic stress disorder (PTSD) as an extraordinary circumstance. 31 LGBT/H asylum applicants may be suffering post traumatic stress disorder or other forms of mental of physical trauma as a result of the persecution they suffered in their native countries. In addition, applicants from countries where homosexuality is greatly stigmatized may have difficulty accepting their sexual orientation themselves, leading to severe depression. Significantly, because of the potential for overuse of this exception, the applicant will need to demonstrate through the testimony of psychiatrists or therapists that he is suffering from PTSD, depression, or another serious illness or disability. Testimony will be considered more credible when the applicant has an ongoing relationship with the medical health professional than if the applicant has been evaluated once for the purpose of strengthening the asylum application. 32
LGBT/H applicants may also have difficulty discussing their sexual orientation, gender identity or HIV-positive status in the United States because they have settled in communities mainly populated by people from the applicant’s native country who also ostracize LGBT/H individuals. Notably, although these types of pressures may not constitute a mental disability specifically, the Asylum Officer’s training manual states that severe family or spousal opposition, extreme isolation within a refugee community, profound language barriers, or profound difficulties in cultural acclimatization may also constitute extraordinary circumstances. 33
The disability category is particularly relevant for those who are HIV-positive. Severe illness during the first year of arrival in the United States may justifiably keep an applicant from timely filing for asylum. In addition, severe depression may be a consequence of being diagnosed with HIV.
22.214.171.124 Extraordinary Circumstances — Legal Disability
Unaccompanied minors can claim that they have a legal disability excusing them for failing to meet the one-year filing deadline. The legal disability must have been during the one-year filing period. The argument that unaccompanied minors have a legal disability could potentially be extended to include accompanied minors as well, particularly for LGBT/H youths who are afraid to inform their families of their sexual orientation and are not reasonably able to pursue their asylum claims until they have left the family household. For purposes of the one year filing deadline, “unaccompanied minor” is defined as a child under the age of 18 in the United States without a parent or legal guardian. 34
126.96.36.199 Extraordinary Circumstances — Ineffective Assistance of Counsel
In order to use ineffective counsel as a basis for the extraordinary circumstances exception, an applicant must meet three requirements she must:
- file an affidavit testifying to the details of the agreement with the attorney;
- inform the attorney of the complaint giving the attorney an opportunity to respond; and
- file a complaint or explain why she has not filed a complaint with the relevant disciplinary authorities. 35
The asylum adjudicator is not supposed to evaluate whether the applicant was given poor counsel. The adjudicator’s role is to determine whether the three requirements have been met and to evaluate whether the counsel’s actions or inactions were related to the delay in filing. 36
An asylum applicant may be able to make a colorable claim to an ineffective assistance of counsel exception if he met with an attorney before the filing deadline and the attorney never informed the applicant of the possibility of applying for asylum based on his sexual orientation, gender identity, or HIV status. Such a claim of ineffective assistance would be difficult, however, if the applicant never raised the issue of his sexual orientation, sexual identity, or HIV status on his own.
Ineffective assistance of counsel will more likely be useful to LGBT/H applicants if an attorney helped file a poorly prepared application that was unsuccessful but was filed within the one-year filing deadline. In addition, a claim of ineffective assistance of counsel may be successful if an LGBT/H applicant was not informed of the one-year deadline when he sought assistance prior to falling outside of the one-year period.
188.8.131.52 Extraordinary Circumstances — Maintenance of Lawful Status
An applicant has an exception to the one-year filing deadline if she files for asylum within a reasonable period after her Temporary Protected Status or lawful immigrant or non-immigrant status ends. Determinations regarding what constitutes a reasonable period of time will take into account the facts of the individual case. However, the Department of Justice has stated that waiting six months after lawful status has ended is clearly not reasonable. 37
This exception is very helpful to LGBT applicants who “come out” while they are studying in the United States and to applicants who learn that they are HIV-positive while working or studying here. Many LGBT/H students are forced to file for asylum when their families stop paying for school once they learn of the applicant’s sexual orientation, gender identity or HIV status.
184.108.40.206 Extraordinary Circumstances — Improperly Filed Application within the One-Year Period
An applicant has an exception to the one-year filing deadline if he filed an application within the one-year filing period but it was rejected because the application was not properly filed, was returned for corrections, and was re-filed within a reasonable period.
220.127.116.11 Extraordinary Circumstances — Death of Serious Illness of Legal Representative or Family Member
The death or serious illness of a legal representative or a family member will excuse a late application. In determining who will be considered a family member, the asylum adjudicator is instructed to consider “the degree of interaction between the family members, as well as the blood relationship between the applicant and the family member.” 38 Although the instructions for the Asylum Officers are not binding on courts, the Asylum Officers’ Training Manual does emphasize the importance of an individual assessment of the relationship between the applicant and the family member. Although the Defense of Marriage Act denies federal recognition of same-sex marriage, the more expansive view of family recognized by the CIS may include same-sex partners for the purposes of the extraordinary circumstances exception. An LGBT/H person who has been unable to timely file due to the serious illness of a partner could argue that she falls under this exception.
18.104.22.168 Extraordinary Circumstances — Other Circumstances
Extraordinary circumstances are not limited to the six categories listed above. The Asylum Officers Training Course notes that other circumstances will be considered such as “severe family or spousal opposition, extreme isolation within a refugee community, profound language barriers, or profound difficulties in cultural acclimatization.” 39 These circumstances may be particularly relevant for LGBT/H applicants who are afraid of how their families and communities will respond to their sexual orientation, gender identity or HIV status. LGBT/H applicants who have settled in communities of immigrants from their native countries may be afraid to disclose their sexual identity or medical issues to others in the community and may not have the language skills to seek therapy or help for accepting their sexual orientation, gender identity or HIV-positive status. Although lack of awareness of the one-year deadline is not considered a justification for an untimely filing, isolation within a refugee community, community and family stigmatization of homosexuality, and fear of discussing one’s sexual orientation because of past physical trauma, may be expanded to include lack of awareness based on these factors.
5.2.3 Reasonable Period of Time
After demonstrating the existence of a changed or extraordinary circumstance, the applicant must show that he filed within a reasonable period of time given those circumstances. As indicated, asylum adjudicators will take into account the particular facts of the case and may consider “education and level of sophistication, the amount of time it takes to obtain legal assistance, any effects of persecution and/or illness, when the applicant became aware of the changed circumstance, and any other relevant factors.” 40
As a practical matter, asylum adjudicators tend to interpret the “reasonable period of time” very restrictively. Therefore it is extremely important for an attorney to file a late application as quickly as possible to avoid a finding that the applicant did meet an exception but did not file within a reasonable period of time after the exception.
5.3 Relief Comparison Chart
Click here for a pdf chart outlining the differences between asylum, withholding of removal, withholding under CAT and deferral under CAT.
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.
- INA §208(a)(2)(B). ↩
- INA §208(a)(2)(D). ↩
- INS, ASYLUM OFFICER BASIC TRAINING COURSE, LESSON: ONE-YEAR FILING DEADLINE, (March 23, 2009) available at www.uscis.gov/files/article/One-Year-Filing-Deadline.pdf. ↩
- 8 C.F.R. § 208.4(a)(2)(ii). ↩
- Id. ↩
- Asylum Procedures, 65 Fed. Reg. 76,121, 76,121 (Dec. 6, 2001) (codified at 8 C.F.R. §208). ↩
- Matter of In re Y.-C.-, 23 I. & N. Dec. 286, 287-88 (B.I.A. 2002). ↩
- AOBTC, supra note 2. It is not binding in the sense that if an Asylum Officer fails to follow the Manual and denies the application, the applicant will generally be placed in removal proceedings and receive a de novo hearing before an IJ who is not required to follow the Manual. The Manual can be persuasive in Immigration Court however. ↩
- INA § 208(a)(3);, 8 U.S.C § 1158(a)(3) (2000). See also Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003); Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th Cir. 2003); Fahim v. United States AG, 278 F.3d 1216, 1217 (11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001). ↩
- Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004); Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003). ↩
- Sagaydak v. Gonzales, 405 F.3d 1035, 1039-40 (9th Cir. 2005). But if there is a determination regarding whether the applicant has met the requirements for changed or extraordinary circumstances, even if it is very abbreviated, federal courts will not have jurisdiction to review. See Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir. 2005) (“although the Board’s explanation of its reasoning was rather abbreviated, it made clear that it was denying Sharari’s claim because of unexcused tardiness, not the claim’s merits”). ↩
- INS v. St. Cyr, 533 U.S. 289, 314 (2001). ↩
- Kanivets v. Riley, 320 F. Supp. 2d 297, 300-01 (E.D. Pa. 2004). ↩
- 8 U.S.C.S. § 1252(a) (2005). ↩
- 8 U.S.C.S. § 1252(a)(2)(D) (2005). Although few guidelines have yet been set by case law interpreting the provisions of the act, both the Third and Ninth Circuit have recognized that the Act repeals all jurisdictional bars to direct review of constitutional claims and questions of law. See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005) (finding that applicant’s convictions did not remove jurisdiction from the court since the Real ID Act restores judicial review of constitutional claims and questions of law); Papageoigiou v. Gonzales, 2005 WL 1490454, **2 (3rd Cir. June 24, 2005) (finding the petitioner’s convictions did not divest the Court of jurisdiction because the Real ID Act repealed all jurisdictional bars to the Court in cases involving direct review of constitutional claims and questions of law). See also, updates on the American Immigration Law Foundation website, www.ailf.org/lac/lac_realidresources.htm (discussing the ways in which an attorney may use the provisions of the REAL ID Act). ↩
- 8 U.S.C.S. §1252(b) (2005). ↩
- See www.ailf.org/lac/lac_realidresources.htm for up-to-date information on the Real ID Act. ↩
- INA § 208(a)(2)(D); 8 U.S.C. § 1158(a)(2)(D) (2000). ↩
- 8 CFR §§ 208.4(a)(4)(ii), and 208.4(a)(5) (2005). ↩
- INA § 208(a)(2)(D), 8 U.S.C § 1158(a)(2)(D) (2000). ↩
- 8 C.F.R. § 208.4(a)(4)(ii) (2005). ↩
- d. See also Kanivets v. Riley, 320 F. Supp. 2d at297, 300 (E.D. Pa. 2004) (remanding because the Immigration Judge did not consider arguments regarding delayed awareness as to the changed circumstances of increased antisemitism in Kyrgyzstan). ↩
- 8 C.F.R. §208.4(a)(4)(i) (2005). ↩
- In re: Bassel Marshi, File No. A-26-980-386 (A.G. Feb. 13, 2004) (emphasizing that the changed circumstances in Lebanon, including the withdrawal of the Israeli Defense Forces and the increased influence of Hizbollah, is a justification for an applicant who is publicly known as aiding the United States but is not generally applicable to anyone from Lebanon); In re A.-M.-, 23 I. & N. Dec. 737 (B.I.A. 2005) ( rejectings that bombing in Bali is a changed circumstance for a Christian man of Chinese ethnicity in Indonesia given that the majority of the victims were foreign tourists). ↩
- Although there are no precedential cases which recognize HIV-positive status as creating membership in a particular social group, asylum has been granted in some cases where HIV persecution was an essential element of the application. See In re [name witheld ], (IJ Dec. 20, 2000) (Baltimore, MD) (Gossart, IJ), reported in 78 INTERPRETER RELEASES 233 (Jan. 15, 2001) (HIV-POSITIVE married woman wins asylum as a member of the social group of married women in India based on evidence of ostracism and lack of appropriate medical care if she returned to her native country); In re [ name not provided ], A71-498-940 (IJ Oct. 31, 1995) (New York, NY), reported in 73 INTERPRETER RELEASES 901 (July 8, 1996) (man from Togo granted asylum on the basis of his membership in the particular social group of individuals infected with HIV). ↩
- See 8 C.F.R. §208.4(a)(4) (2005) for a full explanation of “changed circumstances.” ↩
- 8 C.F.R. §208.4(a)(5) (2005). ↩
- Id. ↩
- In re Y.-C.-, 23 I. & N. Dec. 286, 288 (B.I.A. 2002) (holding a man who entered the country at the age of 15 meets the extraordinary circumstances exception); See also 8 C.F.R.§208.4(a)(5) (setting out the requirements for an extraordinary circumstances exception). ↩
- 8 C.F.R. §208.4(a)(5) (2005). ↩
- Mukamusoni v. Ashcroft, 390 F.3d 110 (1st Cir. 2004) (holding a woman from Rwanda with post traumatic stress disorder meets the extraordinary circumstances exception.) ↩
- Victoria Neilson & Aaron Morris, The Gay Bar: The Effect of the One-Year Filing Deadline on Lesbian, Gay, Bisexual, Transgender and HIV-Positive Foreign Nationals Seeking Asylum or Withholding of Removal, 8 N.Y. CITY L. REV. 601, 638 n. 218 (2005). ↩
- AOBTC, supra note 136, at 14-15. ↩
- See Interim Operating Policies and Procedures Memorandum 04-07: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, September 16, 2004 at 3, available at www.usdoj.gov/eoir/efoia/ocij/oppm04/04-07.pdf. ↩
- 8 C.F.R. §208.4(a)(5) (2005). See also In re Lozada, 19 I. & N. Dec. 637, 639-40 (BIA 1988) aff’d, 857 F.2d 10 (1st Cir. 1988) (stating the requirements of an ineffective assistance of counsel claim). ↩
- AOBTC, supra note 2, 12-13. ↩
- Asylum Procedures “Supplementary Information” to Final Rule, 65 Fed. Reg. 76,121, 76,124 (Dec. 6, 2000). ↩
- AOBTC, supra note 2, at 11-12. ↩
- AOBTC, supra note 2, at 14-15. ↩
- AOBTC, supra note 2, at 16. ↩