AN asylum applicant has the burden of proving by clear and convincing evidence that he or she filed their asylum application within one year of the applicant’s last arrival in the U.S. However, an applicant who misses the one-year deadline may still be eligible for asylum if he or she can establish the existence of either changed circumstances or extraordinary circumstances.
Changed circumstances can arise from either a change in country conditions of an applicant’s home country, or from changes in an applicant’s circumstances, which include changes in U.S. law and activities an applicant becomes involved in while in the U.S.
For example, what happens if violence significantly increases against members of the religious minority an applicant belongs to after he or she has been in the U.S. for more than one year? Or, what happens if a new U.S. law arises that makes a previously ineligible foreign national now eligible for asylum? What about if an applicant starts to speak online against his or her home country’s oppressive regime after having been in the U.S. for more than one year? These examples could fall under the changed circumstances exception. They also highlight the importance of being aware of recent changes in U.S. law.
Further, the changed circumstances exception applies even if the circumstances do not create a new basis for asylum, but simply provide further evidence of the type of harm already suffered.
The applicant must file within a reasonable period given the changed circumstances. The legal standard for what constitutes a reasonable period has continued to evolve over time.
An applicant does not have to prove the existence of changed circumstances by clear and convincing evidence. The clear and convincing standard applies to whether the asylum application was filed within one year, but it is not the applicable standard for determining changed circumstances. This highlights the importance of knowing and ensuring that the applicable legal standards are clearly outlined in an asylum application.
Extraordinary circumstances may include serious illness or mental or physical disability, including the effects of persecution; legal disability (e.g. minority of age or mental impairment); ineffective assistance of prior counsel; maintaining lawful immigrant or nonimmigrant status or parole; filing within one year but having the application rejected as incomplete and then refiling soon after; or the death or serious illness or incapacity of an applicant’s legal representative or a member of an applicant’s immediate family.
For example, what happens if an applicant was very ill during the applicable one-year period, or was still suffering from the effects of past persecution? What happens if he or she was a minor child, or had a temporary mental impairment? What about an applicant who maintained visitor or student status, or had incorrectly filled out the asylum application and it was rejected? These examples could fall under the extraordinary circumstances exception.
The extraordinary circumstances outlined above are not exhaustive, and there are many other circumstances in which a properly presented asylum application might establish the existence of extraordinary circumstances.
The burden is on an applicant to show that the circumstances were not intentionally created through his or her action or inaction, that the circumstances were directly related to the applicant’s failure to file within one year, and that the delay was reasonable under the circumstances. For example, an applicant cannot cause his or her own illness or disability to take advantage of the extraordinary circumstances exception.
As with changed circumstances, an applicant must file within a reasonable period given the extraordinary circumstances. Again, the legal standard for what constitutes a reasonable period has continued to evolve over time.
The U.S. Court of Appeals for the Ninth Circuit, a federal-level appeals court with jurisdiction over California, Nevada, Arizona, Hawaii, Idaho, Washington, Oregon, Montana, and Alaska, has held that the supporting evidence requirement for determining asylum or refugee status may not be brought into other areas of asylum law. This means that an applicant’s own testimony regarding the existence of an exception – if considered credible – may be sufficient to overcome the one-year filing deadline.
The failure to properly file an application for asylum within one year of entry to the U.S. does not automatically disqualify a person. It is important to consult with an experienced and knowledgeable immigration attorney to ask whether an exception applies in their case.
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The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the personalized representation that is essential to every case.