Immigration Laws of the United States require a person seeking Asylum protection in the United States to file the Asylum application, within one year of arriving in the United States either with the United States Citizenship and Immigration Service or with the Immigration Court if the applicant is in removal proceedings.
When does calculation of the one-year deadline clock start?
The one -year period is calculated from the date of the applicant’s last arrival in the United States meaning that the date of arrival is counted as day zero, so the first official day counted as day one is the day after the applicant’s actual arrival date in the United States. For example, if a visitor enters the United States on January 1, 2020, day one of the clock starts on January 2nd making the filing deadline for the visitor to file the asylum application, December 31, 2020.
Can I file for Asylum if I have been in the United States for more than one year?
You can file your Asylum Application past the one-year deadline only if your circumstances fall under one of two exceptions allowed under Immigration Law. The exceptions are known as Changed circumstances that materially affect the applicant’s eligibility for Asylum creating a new filing deadline based on the existence of the new circumstance or Extraordinary Circumstances that are related to the delayed filing which may toll or extend the filing deadline past the one year mark as long as the application is filed within a reasonable period of time.
Changed circumstances include:
Changed Country Conditions: A change in an applicant’s country of origin occurring past the one-year period after arrival which now qualifies the applicant for protection under Asylum law where it did not previously exist. This could be a situation where there is a change in government or a change in government law or policy that has created a practice of persecuting a group of people that the applicant identifies with or is a member. For example, an applicant who is a member of a religion that is suddenly being persecuted or the religion being outlawed by a new law in the applicant’s country of origin where the change in law sets a new one-year filing period where the application must be filed within the year of that new one-year filing period.
Changed Personal Conditions: Changed circumstances can also occur based on an applicant’s changed personal circumstance occurring past the one year period after arrival such as an applicant joining a new religion that has always been outlawed or persecuted in his country of origin or becoming involved in a political movement that opposes the government from the applicant’s country of origin that is outlawed or being persecuted. The act of joining the religion or movement sets a new one-year filing period where the application must be filed within the year of that new one-year filing period.
Changes in US Law: Changes in United States law or changes in the interpretation of Asylum law in the United States that may create a new basis to qualify for Asylum protection also creates a new filing deadline one year after this new law or interpretation is published or announced. This may occur in a situation where an Immigration appellate Court has issued a decision expanding Asylum eligibility for a certain class of people an applicant is a member after the one-year filing period setting a new filing period where the application must be filed within the year of that new one-year filing period.
Loss of Derivative Status: An applicant that was a dependent as a spouse or child of a person applying for Asylum who losses dependent status because of the death or divorce of a spouse or the death of a parent or because a dependent child turns 21 years of age will allow such an applicant to file an Asylum application past the one-year deadline once the relationship allowing for dependent status has terminated. Meaning that there is created a new one-year filing period where the application must be filed within the year of that new filing period.
While the concept of changed circumstances is dependent on a new situation or circumstance creating new eligibility and therefore opening a new one-year filing deadline window, the concept of extraordinary circumstances depends on a situation or circumstance where the applicant was prevented from filing the application allowing for the application to be filed beyond the one-year deadline as long as it is filed within a reasonable period of time after the occurrence of the extraordinary circumstance. Unfortunately, there is no clear rule defining a reasonable period of time since it is very specific to an individual’s circumstances. The rule of thumb in these situations is to file as soon as possible and to try to avoid a substantial period of time to pass before filing the application.
Legal disability: The applicant was a minor or suffered from a mental impairment during the one-year period after arrival. Once the applicant is not considered a minor or has recovered from the mental impairment after the one-year filing window, there is then a rush to file the asylum application as soon as possible to be considered having filed the application within a reasonable period of time or be prepared to explain based on personal circumstances that the filing occurred within a reasonable period of time.
Serious illness or Disability: The applicant suffered from a serious illness or mental or physical disability that prevented filing the application within the one-year period after arrival. Again, once the applicant is recovered, there is a rush to file the application as soon as possible or be prepared to explain based on personal circumstances that the filing occurred within a reasonable period of time.
Ineffective assistance of counsel. The applicant met with an attorney where the applicant raised the claim of fear of being persecuted to the attorney before the filing deadline and the attorney never informed the applicant of the possibility of applying for Asylum, the attorney incorrectly advised the applicant that the claim did not qualify for relief under Asylum law or the attorney was hired by the applicant and the attorney failed to file the application. This scenario can be tricky because it can be years before the applicant discovers the ineffective assistance or advice where the applicant must be prepared to explain how and when the ineffective assistance was discovered in an attempt to explain that the late filing was completed based on personal circumstances within a reasonable period of time.
End of Legal Status: An applicant can file beyond the one-year filing deadline if the applicant was maintaining legal status but fell out of status or had their status terminated. Again, the applicant must be prepared to explain that the late filing occurred, based on personal circumstances within a reasonable period of time.
Improperly Filed Application Within the one-year filing period: An applicant who filed an Asylum application with the one-year filing deadline window, but had the application rejected because it was not properly filed may refile past the filing deadline if filed within a reasonable period of time.
Death or Serious Illness of Legal Representative or Family Member: This can be a close family member or someone serving as a legal representative that impacted the applicant’s ability to timely file the Asylum application. Again, must still be prepared to explain based on personal circumstances that the application is being filed within a reasonable period of time.
Other Circumstances: An applicant can also be prevented from timely filing an Asylum application because of severe family or spousal opposition, extreme isolation within a refugee community, profound language barriers or profound difficulties in cultural acclimatization. For example, an individual identifies as being homosexual, but conceals this fact based on belief of a severe form of family opposition to anyone who identifies as homosexual. Again, this applicant must be prepared to explain what changed to overcome the possibility of such opposition and again must be prepared to explain based on personal circumstances that the filing occurred within a reasonable period of time.
It is important to note that Asylum is very complex, and the circumstances noted in this guide are not exhaustive. If you believe you have a claim under Asylum law and have doubts about whether you qualify, we highly recommend that you schedule an appointment with one of our attorneys to discuss your situation and to assist you in determining whether you qualify for Asylum.
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