United States: Options available to individuals who miss the one-year deadline for filing an asylum claim; whether an exception to the one-year deadline would be made if the individuals had American-born children; whether an exception would be made if the individuals had legal status in the United States, or had overstayed their visa, or were illegal; whether legal representation is required at first instance or at second instance review before an Immigration Judge; and availability of legal aid

Background

The 1996 United States (US) Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires that asylum claimants who file after 16 April 1998 (US 4 Feb. 2006, 4-5), apply for asylum within one year of the date of their last arrival in the country (ibid.; IMEQ/MIHRC N.d., 24). According to a February 2006 US asylum officer training manual, the applicant has the burden of proof to establish whether or not an asylum application was filed within one year from his or her last date of arrival in the US (US 4 Feb. 2006, 6). The manual also indicates that the date of last arrival in the US is determined through an interview with an asylum officer (ibid., 4) and that the claimant must provide "clear and convincing" proof that an application was filed before the one-year deadline (ibid., 6). Testimony (with or without witness corroboration) and documentation such as "passport entries, boarding passes, leases, etc." can be used as evidence of the date of last entry into the US (ibid., 7).

Section 208.4 of the 1952 US Immigration and Nationality Act (INA) states that an asylum application (if properly signed and submitted) is considered to be filed on the date it is received by the US Citizenship and Immigration Services (USCIS). This section of the Act also notes that if an application was mailed to the USCIS within the one-year filing deadline, the postage date of the application may be considered the filing date (ibid.; US 4 Feb. 2006, 6; MIHRC May 2006, 25).

A 2006 American Bar Association (ABA) report on asylum and refugee procedures in the US stated that, as of February 2006, "removal proceedings" have reportedly been initiated in more than 35,000 cases since the one-year deadline was implemented (ABA Feb. 2006, 2). The report also stated that the rate of rejection has increased "significantly" since 11 September 2001, and that

[i]n each of these cases [of rejection because of the one-year deadline], asylum officers do not consider the merits of the applicants' cases, instead referring them for removal proceedings solely because they did not file their applications soon enough or because they cannot provide the evidence deemed necessary to prove their date of entry or their eligibility for an exception to the deadline (ibid.).

Options available if one-year filing deadline is missed

If an asylum claimant misses the one-year filing deadline, a late application may be submitted if the claimant can prove that there are "changed circumstances" affecting his/her eligibility or if there are "extraordinary circumstances" preventing the claimant from filing an application on time (US n.d.a; US 4 Feb. 2006, 8; HRF 24 Sept. 2004).

According to the USCIS Website "changed circumstances" include, "but are not limited to":

– changes in conditions in the applicant's country of nationality or, if the applicant is stateless, country of last habitual residence;

– changes in the applicant's circumstances that materially affect the applicant's eligibility for asylum, including changes in applicable US law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or

– in the case of an alien who had previously been included as a dependent in another alien'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 (US n.d.a).

"Extraordinary circumstances" include, "but are not limited to":

– 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;

– legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the one-year period after arrival;

– ineffective assistance of counsel ...

– the applicant maintained Temporary Protected Status, lawful immigrant or non-immigrant status, or was given parole, until a reasonable period before the filing of the asylum application;

– the applicant filed an asylum application prior to the expiration of the one-year deadline, but that the application was rejected by the [USCIS] Service as not properly filed, was returned to the applicant for corrections, and was refiled 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 (ibid.).

Under the circumstances described above, asylum applications must still be filed "within a reasonable amount of time" (ibid. n.d.b; US 4 Feb. 2006, 18; IMEQ/MIHRC N.d., 24).

Asylum claimants who have missed the one-year filing deadline, and who do not qualify for an exception due to "changed circumstances" or "extraordinary circumstances," may still qualify for "withholding of removal" under Section 241(b)(3) of the INA (HRF 24 Sept. 2004; see also MIHRC May 2006, 16). Applicants of withholding of removal, however, have a greater burden of proof to meet than for asylum (ibid.; HRF 24 Sept. 2004). According to correspondence from an attorney specializing in US asylum law at the non-governmental organization, Human Rights First (HRF),

rather than proving that they have a 'well founded fear' of persecution (the standard for asylum), an applicant for withholding [of removal] must show a clear probability of persecution, i.e. that persecution is more likely than not (ibid.).

Asylum claimants who miss the one-year filing deadline might also be eligible for withholding of removal under the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (ibid.; MIHRC May 2006, 17). This type of protection is granted to those who have a fear of being tortured, as defined under the CAT, if returned to their country of origin (ibid.; HRF 24 Sept. 2004). An applicant for withholding of removal under CAT must demonstrate that there is a "clear probability" that he/she will be tortured if returned (ibid.).

Both withholding of removal under Section 241(b)(3) of the INA and withholding of removal under CAT provide limited relief (ibid.; MIHRC May 2006, 16-17). In September 2004 correspondence, the attorney at HRF stated that

[u]nlike asylum, it does not cover an applicant's spouse and unmarried children under 21. Nor does it lead to permanent residence for the withholding recipient...Spouses and children of a person granted withholding would not be eligible for withholding unless they themselves could also satisfy the same evidentiary standards required of the principle applicant (24 Sept. 2004).

The attorney further noted that

[w]ithholding recipients can never leave the United States (by doing so they would be executing the order of removal against them which is being withheld), are ineligible for refugee benefits and other forms of assistance available to asylees and refugees, and are protected from deportation only to the country or countries from which they have been granted withholding (HRF 24 Sept. 2004; see also MIHRC May 2006, 16-17).

According to a law professor at Harvard Law School and an attorney at HRF, avenues for individuals to gain status in the United States that are similar to Canada's Humanitarian and Compassionate Review or Pre-Removal Risk Assessment are limited (Professor 13 Sept. 2004; HRF 24 Sept. 2004). The attorney added that such avenues "tend to be either nationality-specific or highly discretionary, rare, and often inconsistently administered" (ibid.).

For instance, nationals of specific countries may be protected from deportation by applying for Temporary Protected Status (TPS) (ibid.; US n.d.c). TPS allows the claimant to remain in the United States and to obtain work during the TPS period (ibid.). However, TPS does not provide the claimant with permanent resident status: once a country no longer has a TPS designation, the status of the claimant returns to that which he/she had prior to TPS, or to the status he/she was granted during TPS (ibid.). According to the HRF attorney, the TPS is also "highly circumscribed, typically covering only nationals [of a specific country] who can prove that they arrived in the United States before a certain date and have resided [in the US] since then" (24 Sept. 2004).

The Secretary of Homeland Security extends a TPS designation to countries based on the following factors:

a. There is an ongoing armed conflict within the state and, due to that conflict, return of nationals to that state would pose a serious threat to their personal safety;

b. The state has suffered an environmental disaster resulting in a substantial, temporary disruption of living conditions, the state is temporarily unable to handle adequately the return of its nationals, and the state has requested TPS designation; or

c. There exist other extraordinary and temporary conditions in the state that prevent nationals from returning in safety, unless the Secretary finds that permitting nationals of the state to remain temporarily is contrary to the national interest of the United States (US n.d.c)

In May 2006, TPS-designated countries included Burundi, El Salvador, Honduras, Liberia, Nicaragua, Somalia, and Sudan (ibid. n.d.d).

Nationals of specific countries may also be temporarily protected from removal through Deferred Enforced Departure (DED) (ibid.). DED is usually for a period of 12 to 18 months, during which time, claimants may seek employment with proper employment authorization (National Immigration Forum n.d.). Countries under DED are designated by the President of the United States (ibid.; US n.d.d.). Since it was first used in 1990, DED has reportedly been used a total of five times (ibid.; National Immigration Forum n.d.). For example, from 1999 to 2002, Liberia was designated under DED, which provided protection from removal to roughly 10,000 Liberians (US 4 Dec. 2001).

In September 2004 correspondence, an attorney at HRF indicated that there is anecdotal evidence to suggest that "grants of deferred action, always rare, have dropped to new lows since the creation of the Department of Homeland Security in March 2003" (24 Sept. 2004). In May 2006, no countries were designated for DED (US n.d.d).

Eligibility criteria for the TPS and the DED can be found on the USCIS Website at .

According to the HRF attorney, other legislation has occasionally been passed in the US to

resolve the status of classes of people who came to the United States seeking asylum or in other refugee-like situations and whose status remained unresolved years later. Examples of such legislation include the Nicaraguan Adjustment and Central American Relief Act (NACARA) and the Haitian Refugee Immigration Fairness Act (HRIFA) (24 Sept. 2004).

Defensive asylum processing

Individuals facing deportation from the United States may request asylum as a "defense against removal" (US n.d.b). The USCIS Website notes that defensive asylum processing takes place when an Asylum Officer does not grant asylum to a claimant and refers his/her case to an Immigration Judge (IJ) (ibid.). It may also occur when removal proceedings are initiated because the claimant is "undocumented or in violation of their status when apprehended in the US" or was "caught trying to enter the US without proper documentation (usually at a port-of entry) and [was] found to have a credible fear of persecution or torture" (ibid.).

The USCIS Website further states that defensive asylum proceedings are "adversarial" in the sense that the IJ, with the Executive Office for Immigration Review (EOIR),

hears the applicant's claim and also hears any concerns about the validity of the claim raised by the Government, which is represented by an attorney ... If the applicant is not found eligible for asylum [by the IJ], the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States (n.d.b).

Asylum claimants with American-born children

An asylum claimant who misses the one-year filing deadline and has an American-born child is not protected from deportation, unless issues related to the birth of a child prevented the claimant from filing his/her claim on time (e.g., the serious illness of a child or a "particularly difficult" pregnancy, resulting in the claimant being physically and/or mentally "incapacitated") (HRF 24 Sept. 2004.). However, if the American-born child is 21 years of age or older, the child may be able to help the parent gain status in the United States (US) by filing a Petition for Alien Relative (ibid.). As an immediate relative of an American citizen (i.e., the American-born child), the asylum claimant would be eligible to obtain status as a permanent resident (ibid.).

According to correspondence from an attorney at HRF, another mechanism through which an asylum claimant with an American-born child can obtain protection from removal is a "cancellation of removal" (24 Sept. 2004). The attorney stated that

[c]ancellation of removal, in this context, would require the parent (or, if two parents were involved, would require each parent) to show that he or she had been physically present in the US for a continuous period of ten years or more (or three years or more in the case of an applicant claiming cancellation as a battered spouse), had been a person of good moral character during this period, had not been convicted of any disqualifying crimes, and could establish that his or her removal from the US would result in 'exceptional and extremely unusual hardship' to his or her US citizen child (24 Sept. 2004).

However, the attorney further noted that the number of persons eligible for "cancellation [of removal] and adjustment of status" is limited to 4,000 per year across the country, and that "very few" asylum claimants who have missed the one-year filing deadline are "in a position to benefit" from this means of obtaining permanent resident status (24 Sept. 2004).

Legal immigration status in the US

A 2006 US Asylum Officer training course manual identifies the maintenance of legal immigration status in the US as an "extraordinary circumstance" which may excuse asylum claimants from meeting the one-year filing deadline (4 Feb. 2006, 14). The manual states that

[a]s with all extraordinary circumstances that affect filing, maintaining lawful status excuses the failure to file within the one year period so long as the application was filed within a reasonable period given the circumstances that relate to the failure to timely file (US 4 Feb. 2006, 14).

According to a 2003 Midwest Immigrant and Human Rights Center publication, asylum claimants who miss the one-year deadline, but who had legal status in the US, can apply for asylum if they do so within six months following the loss of their legal status (Sept. 2003, 6-7).

An attorney at Human Rights First (HRF) also indicated that it was possible to apply for asylum once a person's legal status had run out; however the attorney stated that

the applicant would need to have maintained valid status throughout the year following his or her arrival, and to have filed for asylum within a 'reasonable time' following the expiration of such status. What constitutes a 'reasonable time' is unsettled and ill-defined. In practice, an applicant in such circumstances would be well-advised to file for asylum before the expiration of his or her status or as soon as practicable thereafter (ibid.). (HRF 24 Sept. 2004).

Legal Representation

According to a representative of Midwest Immigrant & Human Rights Center (MIHRC), a Chicago-based program that "provides direct legal services to and advocates for low-income and impoverished immigrants, refugees and asylum seekers" (MIHRC n.d.), there is no legal requirement for asylum seekers to have legal representation for any review (even at the Federal Court level) of their immigration case (1 June 2006).

According to a 2006 ABA publication, many asylum claimants "experience great difficulty in finding legal representation" and approximately two-thirds of them reportedly have no representation in the first instance (Feb. 2006, 2-3). The report further explained that it is "extraordinarily difficult" for a claimant to have his/her application "considered on its merits" without legal assistance (ABA Feb. 2006, 2). The report also cited studies on the topic which found that asylum claimants were between 1.4 and 17 times more likely to be granted asylum if they had legal representation at their hearings (ibid., 3).

American online sources designed to provide information to immigrants and refugees encourage asylum claimants to find legal representation (Tibet Justice Center Nov. 2001; IMEQ n.d.; HIAS 31 July 2003), as the US asylum application process is said to be "complex" (ibid.; see also Tibet Justice Center Nov. 2001).

In September 2004 correspondence with the Research Directorate, a law professor from Harvard Law School indicated that legal representation for asylum claimants in the United States is "very restricted" (13 Sept. 2004). The professor stated that,

[a]ny organization...which receives any federal legal services assistance, can't use any funds (even external) to represent persons applying for asylum protection (13 Sept. 2004).

The MIHRC representative, who is involved in connecting asylum claimants with pro bono legal services, noted that the US government does not provide legal assistance to immigrants in removal proceedings because they do not have the right to government-funded counsel (1 June 2006). Although certain non-profit, non-governmental organizations who provide legal assistance to asylum claimants may receive some government funding for other, non-asylum services, there is no systemic federal- or state- government funding for providing legal services to asylum claimants (MIHRC 1 June 2006). Asylum claimants generally present their cases before the asylum office or immigration court themselves; hire a lawyer at their own expense; or obtain legal services through a pro bono organization (ibid.). The US Department of Justice Executive Office for Immigration Review (EOIR) Website provides a list of free legal service providers in the US (US n.d.e).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

American Bar Association (ABA). 6 February 2006. American Bar Association Commission on Immigration Report to the House of Delegates. [Accessed 23 May 2006]

Hebrew Immigrant Aid Society (HIAS). 31 July 2003. "Applicant For Asylum." [Accessed 23 May 2006]

Human Rights First (HRF), New York. 24 September 2004. Correspondence from an attorney specializing in US asylum law.

Immigration Equality (IMEQ). N.d. "Asylum Seekers." [Accessed 4 May 2006]

Immigration Equality (IMEQ) and Midwest Immigrant & Human Rights Center (MIHRC). N.d. "Winning Asylum, Withholding and CAT Cases Based on Sexual Orientation, Transgender Identity and/or HIV-Positive Status." [Accessed 25 May 2006]

Midwest Immigrant & Human Rights Center (MIHRC). 1 June 2006. Telephone interview with a representative.
_____. May 2006. Basic Procedural Manual For Asylum Representation Affirmatively and in Removal Proceedings. [Accessed 31 May 2006]
_____. September 2003. "Know Your Rights: Information Packet About Detention, Deportation, and Defenses Under U.S. Immigration Law." (Asylumlaw.org Website) [Accessed 25 May 2006]
_____. N.d. "Who we are." [Accessed 1 June 2006]

National Immigration Forum. N.d. "Refugees and Asylums: Deferred Enforced Departure." [Accessed 25 May 2006]

Professor of Law, Harvard Law School. 16 September 2004. Correspondence.
_____. 13 September 2004. Correspondence.

Tibet Justice Center. November 2001. "Applying For Asylum in the United States: General Information for Newly-Arrived Tibetans." [Accessed 25 May 2006]

United States (US). 4 February 2006. Citizenship and Immigration Services (USCIS). Asylum Officer Basic Training Course: Lesson Plan Overview: One Year Filing Deadline. Document received in correspondence from a representative of the Resource Information Center of the Office of Refugee, Asylum, and International Operations, USCIS.
_____. 4 December 2001. Department of Justice, Immigration and Naturalization Service (INS). "Extension of Deferred Enforced Departure for Eligible Liberians." [Accessed 25 May 2006]
_____. 1952. Citizenship and Immigration Services (USCIS). Immigration and Nationality Act (INA). Sec. 208.4. [Accessed 25 May 2006]
_____. N.d.a. Citizenship and Immigration Services (USCIS). "Ineligibility to Apply for Asylum." [Accessed 23 May 2006]
_____. N.d.b. Citizenship and Immigration Services (USCIS). "Obtaining Asylum in the United States: Two Paths to Asylum." [Accessed 23 May 2006]
_____. N.d.c. Citizenship and Immigration Services (USCIS). "How Do I Apply for Temporary Protected Status?" [Accessed 23 May 2006]
_____. N.d.d. Citizenship and Immigration Services (USCIS). "Temporary Protected Status." [Accessed 24 May 2006]
_____. N.d.e. Department of Justice, Executive Office for Immigration Review (EOIR). "Pro Bono/Legal Access Program." [Accessed 1 June 2006]

Additional Sources Consulted

Oral sources, including: An attorney at Human Rights First (HRF) did not provide any additional information within the time constraints of this Response.

Internet sites, including: Asylumlaw.org; Factiva; United States Citizenship and Immigration Services (USCIS); U.S. Committee for Refugees and Immigrants (USCRI); United States Department of State; Visalaw.com.