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Jason Dzubow on Political Asylum

The Refugee Protection Act and the One Year Asylum Bar

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The Refugee Protection Act of 2010 is currently working its way through Congress.  The proposed law makes some pretty significant changes to the asylum laws of the United States.  Most advocacy groups are endorsing the bill, though it seems not to have captured the attention of the mainstream media.  As an attorney who represents asylum seekers, I thought I would share my perspective on the legislation by examining how it would have affected some of my cases had it been the law.  The RFA (or at least my copy of the RFA) is 78 pages long, so there is a lot to discuss.  So this will be the first part in a series of posts about the RFA.  Today's topic: The Refugee Protection Act of 2010 eliminates the requirement that an asylum seeker files for asylum within one year of arrival in the United States.  


Deadline calendar INA § 208(a)(2)(B) states that in order to qualify for asylum an alien must demonstrate by "clear and convincing evidence that the application [for asylum] has been filed within 1 year after the date of alien's arrival in the United States."  If the alien fails to timely file for asylum, he or she will not qualify for that relief, but may still apply for withholding of removal pursuant to INA § 241(b)(3) or relief pursuant to the UN Convention Against Torture ("CAT").


For aliens represented by competent counsel, it is often possible to demonstrate "changed circumstances" or "extraordinary circumstances," either of which can excuse the one year filing deadline. See INA § 208(a)(2)(D).  In my own practice, I have encountered many cases where the alien has not filed within one year of arrival.  In most cases, we have been able to demonstrate "changed circumstances" or "extraordinary circumstances," and the alien has qualified for asylum.


For aliens who are unrepresented, the one-year bar presents a barrier to legitimate claims.  The purpose of the bar is to help eliminate fraudulent claims.  However, there are legitimate reasons why an alien might fail to file for asylum within one year of arrival in our country.  Some examples:


Avoidance - I had one case where a political activist from Zimbabwe was arrested and then raped by the police.  After she came to the U.S., the psychological trauma the alien suffered caused her to avoid re-visiting the events in her country (which would have been necessary in order to prepare her asylum application).  As a result, she did not complete the asylum application within one year.  The Asylum Office denied her case because she failed to file for asylum within one year of her arrival (she was pro se), and her case was referred to an Immigration Judge ("IJ").  The IJ ultimately granted asylum (with the agreement of the DHS attorney) after we demonstrated that the alien's failure to file within one year was due to "extraordinary circumstances," i.e., the psychological trauma of her rape, and the resulting avoidance of re-visiting those events.  Had this alien been unrepresented, she might not have been able to demonstrate that she qualified for an exception to the one-year rule.


Alternative Relief - I represented a man from a prominent family in Peru.  After a change in government, the man received anonymous death threats and was followed by unknown people.  He came to the United States, but did not file for asylum because he expected to obtain his residency based on marriage to a U.S. citizen.  The marriage did not succeed, so he applied late for asylum.  He was not represented by counsel.  The Asylum Office referred his case to the IJ based on the failure to comply with the one-year filing requirement.  As a compromise, the DHS attorney and the IJ agreed to grant of withholding of removal under INA § 241(b)(3).  As a result, the alien has been able to remain in the U.S., but he repeatedly had to appear before the Detention and Removal Office, officers in that office improperly threatened to remove him to a third country, and he has had to renew his work permit every year, which makes it difficult to maintain employment.  If he marries a U.S. citizen, he could re-open his case and obtain his residency based on the marriage.


Changed Circumstances & Other Obligations - In another example, I represented a Tuareg woman from Niger who feared return to her country after the government began a war with the Tuareg people and after her grandmother was killed by a land mine.  The woman, who represented herself, failed to file for asylum within one year because (1) the conflict was dormant when she first arrived in the United States, so she did not fear return, and (2) she was the primary caretaker for her father, and was too occupied to prepare her case.  Her sister, who had the exact same case and also filed late, received asylum from the Asylum Office.  My client's case was referred to the IJ, and after much discussion, the IJ and the DHS attorney agreed to a grant of asylum.    


In the above examples, the one-year bar resulted in wasted judicial resources and hardship for legitimate asylum seekers.  Had these aliens been unrepresented before the IJ, their cases would likely have been denied (all the cases were denied by the Asylum Office, where the aliens were without representation).  Thus, these aliens--who were later determined to be legitimate refugees--were initially denied asylum solely because they had not complied with the one-year filing requirement for asylum.  Had they not been represented before the IJ, these aliens likely would have been ordered removed to countries where they faced persecution. 


The Refugee Protection Act would eliminate the one year filing deadline, and would protect legitimate asylum seekers such as the aliens discussed above.

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