Does the asylum one year filing rule apply to you?
If you did not enter the United States lawfully, you must apply for asylum within one year of your entry to the U.S. However, if you entered the U.S. using an immigrant or a nonimmigrant visa (such as a tourist or student visa) or you have Temporary Protected Status, the asylum one year filing rule does not apply to you. You must apply for asylum within a reasonable period after your legal status ends.
There are a number of exceptions to the asylum one year filing rule. Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a person could apply for asylum at any time. This law created a new eligibility requirement that those applying for asylum after April 1998 had to comply with the asylum one year filing rule.
Exceptions to the asylum one year filing rule include changed circumstances which materially affect your eligibility for asylum and extraordinary circumstances related to the delay in your filing.
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Exceptions to the Asylum One Year Filing Rule
Federal regulations provide a non-exhaustive list of ways in which your circumstances could have changed that may make you eligible for an exemption of the asylum one year filing rule. These include but are not limited to:
- Changed conditions in your country of nationality or last habitual residence
- Changes in applicable US law
- Changes in personal circumstances
- The ending of your spousal or parent-child relationship to the principal applicant in a previous application
- You have become a refugee since leaving your country
The second possibility for an exemption from the asylum one year filing rule is if you have experienced extraordinary circumstances that caused a delay in applying for asylum. These situations include:
- Events or factors in your life that directly caused you to miss the deadline
- Serious illness or mental or physical disability
- Death or serious illness or incapacity of your legal representative or member of your immediate family
- Legal disability
- Ineffective assistance of counsel
Establishing proof that an exception to the asylum one year filing rule applies to you can be difficult. It is your responsibility to provide evidence of the circumstances related to the timing of your application and that the application was filed within a reasonable amount of time thereafter.
Notice of Proposed Settlement Agreement in Mendez Rojas v. Wolf
On November 4, 2020, the United States District Court for the Western District of Washington held a Fairness Hearing in Mendez Rojas et al. v. Wolf et al., 2:16-cv-01024-RSM (W.D. Wash.), and granted final approval of the settlement agreement. The final settlement agreement and court order approving the settlement agreement are available at the following links:
Mendez Rojas et al. v. Wolf et al., Final Settlement Agreement
Mendez Rojas et al. v. Wolf et al., Order on Joint Motion for Final Approval of Settlement Agreement
The settlement agreement requires United States Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) to implement a Uniform Procedural Mechanism (UPM) for aliens to file their Form I-589, Application for Asylum and for Withholding of Removal. USCIS and EOIR expect to publish and implement the UPM on January 26, 2021.
If you believe you are a member of the Mendez Rojas class, you will have until April 22, 2022, to raise a claim that the one-year deadline to file an asylum application does not apply to you under the terms of the final settlement agreement. You may raise this claim in a new asylum filing, in a pending filing, or through a motion before the immigration court or the Board of Immigration Appeals, whichever applies.
Asylum One Year Filing Rule Links
- Asylum One Year Filing Deadline (USCIS)
- Asylum Eligibility Q&A (USCIS)
- GUIDELINES FOR THE IMPLEMENTATION OF THE SETTLEMENT AGREEMENT IN MENDEZ ROJAS V. WOLF – EOIR (11-05-20)
- Asylum Expert Witness List
- Asylum – Firm Resettlement
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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