The United States government requires asylum seekers to file an asylum application within one year of entering the country. But circumstances such as lack of legal assistance, and instability can prevent an asylum seeker from filing it on time.
Documented has received more than 25 comments via our WhatsApp channel from asylum seekers who are nearing the end of their first anniversary since entering the country. They say they have not been able to find assistance to submit their asylum case and have asked: what happens if they miss the deadline? The answer is not simple.
The information in this article is solely for informational purposes only and does not constitute legal advice. For legal assistance please see our list of pro-bono lawyers in New York. Or call Action-NYC if you live in one of the five boroughs of New York City.
One of the things to keep in mind is the differences between Affirmative Asylum and Defensive Asylum.
Affirmative asylum is when individuals voluntarily apply for asylum with the U.S. Citizenship and Immigration Services (USCIS) within one year of their arrival. They undergo an interview with an asylum officer, and if approved, they become asylees. If denied, their case may be referred to an immigration court for removal proceedings.
When the case is deferred to an immigration court for removal proceedings, it becomes a Defensive asylum claim as the migrant is seeking a defense against deportation. They assert their eligibility for asylum during immigration court proceedings before an immigration judge. If the judge denies their claim, they may have the opportunity to appeal the decision.
Defensive asylum can also occur if an individual is detained by U.S. Customs and Border Protection (CBP). “If you come to the United States, without a visa and say, hey, I want asylum, you automatically get put in deportation proceedings, the people at the border will say, you came here and didn’t have permission to enter, you don’t have a visa, therefore, we’re going to put you in deportation proceedings,” explained Brian Manning, a political asylum lawyer and former government asylum officer, said.
Exceptions to the one year deadline for filing your asylum application
One of the misconceptions about the one year deadline is when it starts. “People think it starts when they are released by CBP but it actually starts the moment they step into the country,” Manning said.
Keeping in mind the entering date is essential because failing to do so can make their cases more difficult to approve or they have a higher chance of being denied and deported.
However, there are three exceptions known as the exceptions for extraordinary circumstances, that permit individuals to file their asylum claims after the one-year deadline has passed. The exceptions are done on a case by case basis.
- Change circumstance: Manning says than an example of changed circumstance could be one’s home country becomes no longer safe to return due to political reasons. “The idea here is that you didn’t need asylum at first but something that you did — like criticizing your country online — and … now you do because if you were to go back it could be harmful,” he said. Another example could be when a new law is introduced at the country of origin that could put a group of people in harm’s way.
- Extraordinary circumstances: If the individual can demonstrate extraordinary circumstances that prevented them from filing their asylum application within one year, they may qualify for an exception. Examples of extraordinary circumstances can include serious illness, mental or physical disability, or legal or procedural impediments. (See the full list here).
- Minor children: “Minors under 18 qualify for an exception because of the legal complexity [of the filing process],” Manning said. However, after turning 18, the individual must also file their asylum application with a reasonable amount of time, he added.
Filing within the one-year deadline is very important. However, there is still room to show that you may qualify for one of the exceptions, said Manning. “It does still bear talking with an immigration lawyer about whether you might qualify for exemption because sometimes people are surprised to learn that they do qualify for an exception.”