One of the first things most asylum-seekers in the U.S get familiar with is the “one-year-filing-deadline”. Asylum applicants must submit their claims within one year on entering the U.S. This deadline is a legal construct imposed by Art. 8 U.S.C. § 1158(a)(2)(B) where an asylum application is considered timely if the applicant complies with the one year filing requirement. The cheesy adage that “there is an exception to every rule” is largely true and the one-year deadline is not spared; that is, if the applicant can demonstrate that “changed circumstances” or “extraordinary circumstances” existed to permit the untimely filing. Vitaly related but less known is that Courts of Appeal lack jurisdiction to review determinations concerning exceptions to the right to apply for asylum under 8 U.S.C. § 1158(a)(3), see also § 1252(a)(2)(C), (D); Larngar v. Holder, 562 F.3d 71, 75 (1st Cir. 2009). This means that if the agency (DHS) and Immigration Judge (IJ) fail to accept the changed or extraordinary circumstances exception [you] assert, your application has very slim chances of being reviewed on appeal.
Who is most affected by this requirement?
According to this September 2017 report of statistics released quarterly, 36% of asylum applications affirmatively filed with the Asylum Division are referred or placed in removal proceedings for failing to meet the one-year-deadline. By deduction, 64% of those non-citizen asylum seekers who are not in removal proceedings like those come to the U.S legally (with Visitor visas) or exceptions like unaccompanied minors, usually comply with the one-year-deadline. The worst affected are those undocumented immigrants who get apprehended at the border upon entry, are “processed” by ICE and are later released into the U.S interior ostensibly after placing them in “removal proceedings. Their asylum claims, if any, can only be resolved by an Immigration Judge. For various outlying reasons, these immigrants, the majority of whom may be potential asylum applicants (in fact, most are released upon expressing a positive fear of returning home) -fail to comply with the one-year-deadline. For years, this one-year-filing requirement has been the bane of their existence… the proverbial noose with which they’d hang their shot at achieving the American Dream.
That noose was recently loosened when a federal court in Seattle issued far-reaching decision in the class action lawsuit of Mendez-Rojas v. Johnson.
How does the Mendez-Rojas decision change things?
On March 29, 2018, the District Court found that the failure to provide all class members with notice of the one-year asylum application period violates Congressional intent to ensure that asylum is available for those with legitimate claims of asylum. Thus, the failure to provide notice violates the APA and the INA. In addition, the lack of notice – where, among other problems, notice was confusing and misleading and where class members are particularly vulnerable – violates the 5th Amendment Due Process Clause. Finally, the lack of an adequate mechanism to timely file their asylum applications violates class members’ statutory right to apply for asylum and the APA.
The Court ordered Defendants or Dept of Homeland Security (DHS):
- To adopt within 90 days, a notice of the one-year filing deadline, in consultation with class members, and to thereafter provide notice to all class members who have already been released from DHS custody. For all future class members who have not been released, DHS Defendants shall provide notice prior to or at the time of release from custody;
- To accept as timely filed any asylum application from a class member that is filed within one year of the date of adoption of the notice; and
- Within 120 days of this Order, to adopt and publicize, in consultation with class members, uniform procedural mechanisms that will ensure class members are able to file their asylum applications in a timely manner, and to thereafter immediately implement this procedure
Finally, who are the Class Members or who may benefit from this decision?
The federal judge certified or allowed 2 classes, each class with 2 subclasses and were made part of this class action;
CLASS A (“Credible Fear Class”): All individuals who have been released or will be released from DHS custody after they have been found to have a credible fear of persecution within the meaning of 8 U.S.C. §1225(b)(1)(B)(v) and did not receive notice from DHS of the one-year deadline to file an asylum application as set forth in 8 U.S.C. § 1158(a)(2)(B). A.I.: All individuals in Class A who are not in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival. A.II.: All individuals in Class A who are in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
CLASS B (“Other Entrants Class”): All individuals who have been or will be detained upon entry; express a fear of return to their country of origin; are released or will be released from DHS custody without a credible fear determination; are issued a Notice to Appear (NTA); and did not receive notice from DHS of the one-year deadline to file an asylum application set forth in 8 U.S.C. § 1158(a)(2)(B). B.I.: All individuals in Class B who are not in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival. B.II.: All individuals in Class B who are in removal proceedings and who either (a) have not yet applied for asylum or (b) applied for asylum after one year of their last arrival.
This is indeed good news for asylum-seekers who had hitherto been proffered the noose.
Bottom line: All those potential asylum applicants who fall within the above class(es) have a blanket one-year period in which they will be allowed to submit their asylum applications.
Additionally, the government or DHS, must issue notices about the one-year filing requirement and adopt measures to ensure that all present and future class members are able to file their asylum applications in a timely fashion.