Filing an Asylum Claim within One Year – A New Hope

On March 29, 2018, Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington issued an important decision regarding the one-year filing deadline for asylum applications. See Mendez Rojas v. Johnson, 2018 WL 1532715 (W.D. Wash. Mar. 29, 2018). In that class action, the plaintiffs claimed that the Department of Homeland Security had failed to provide them with notice of the one-year asylum application deadline and had also failed to create and implement the procedural mechanisms that guarantee the opportunity to timely submit asylum applications within the one-year deadline. On summary judgment, the Judge held that DHS had violated the Immigration and Nationality Act, the Administrative Procedure Act, the governing and implementing regulations, and due process.

By law, an asylum seeker who is present in the United States “may apply for asylum.” INA § 208(a)(1). However, the applicant must also file the required application within one year of arrival in the United States, in most circumstances. INA § 208(a)(2)(B). Additionally, the proper place to file (or lodge) the asylum application depends on which agency has jurisdiction over the case. In a functioning immigration system, an asylum seeker would appear at a port of entry or the border, have a credible fear interview, and be released with instructions to file the formal asylum application with the Immigration Court (or USCIS, depending on the case) during the next 365 days.

Unfortunately, our current immigration system is overburdened and often dysfunctional. Instead of the simple process described above, what is more likely to happen is that an individual will appear at the Southern border and request asylum. The credible fear interview is provided but, even if the individual presents a strong case, no real notice of the one-year deadline is given. Instead, the individual receives a Notice to Appear in immigration court – a notice that very infrequently includes an actual court date (they usually say “TBD” or “To Be Determined”). However, because of the court backlog and intra-government communication failures, that Notice to Appear is often not filed with the immigration court for months, taking well over a year in some cases. At the same time, the immigration court will not accept an asylum application unless the Notice to Appear has been filed first. That leaves hopeful asylum applicants in an impossible situation: even if they were informed about the one-year deadline, there is nowhere to file an asylum application anyway.

Judge Martinez ruled against DHS and gave the Department three months to create a better system of notifying individuals about the one-year deadline. This is an extremely important aspect of the ruling because it is imperative that asylum applicants be informed of their responsibilities so that they can exercise their right to apply for relief. Providing adequate notice is fundamental to meaningful due process. The Judge also ordered DHS to fix the mechanisms within their department to allow asylum applications to be filed in a timely manner, and gave them four months to accomplish this. This second order will likely be more challenging, as it will take coordination between USCIS, ICE, and the EOIR to actually solve the procedural failures in filing asylum applications. Such action is long overdue.

Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas.