By Angela Payne, Vassar College Class of 2022
As an undergrad, working in the Clinic this summer was my first real exposure to the law and, more specifically, immigration law. One aspect that I found particularly interesting is the one-year filing deadline for asylum applicants.
The one-year filing deadline was one of the most significant provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. This statute states that asylum applicants must show “‘by clear and convincing evidence that the application has been filed within 1 year after the date of the [applicant’s] arrival in the United States.’”1 If an applicant fails to meet this deadline, they are referred to immigration court. However, this “one-year bar to asylum”2 is not strictly set in stone. There is a chance that it may be waived if extraordinary or changed circumstances exist, such as a change in the applicant’s home country situation, mental, physical, or legal disabilities, or a change in the applicant’s current situation.3
To calculate the one-year filing deadline for people who applied for asylum on or after April 1st, 1998, one year is added to either the date of the applicant’s most recent entry into the United States or from April 1st, 1997, whichever date is most recent.4 For asylum applicants filing affirmatively,5 the one-year deadline applies if they filed on or after April 16th, 1998. The date on which the applicant filed the asylum application is considered as the date by which U.S. Citizenship and Immigration Services (USCIS) received the application, except if the applicant mailed the application within the one-year filing window and USCIS did not receive it during this same period. In this case, the mailing date is the application filing date.
The initial reason behind Congress’s implementation of the one-year filing deadline was “to prevent fraud” as anti-immigrant sentiments in the country rose and as the reasons behind undocumented immigrants’ asylum applications began to be more frequently questioned.6 During this time, widespread concern existed that undocumented immigrants were abusing the asylum process to obtain work permits and access to other benefits and that their “defensive applications” were, therefore, “insincere.”7 The Congressional authors of the bill also intended for the United States to remain a safe haven for people fleeing persecution and seeking “legitimate” asylum, so they assured opponents to the bill’s passage that the exceptions to the deadline were not exhaustive and that they would reconsider the deadline if it was not fairly implemented.8 However, other members of Congress raised concerns over the possible unfair implementation of this rule. In response to their concerns, Representative Bill McCollum, the Chief House sponsor of the bill, communicated an understanding that the Immigration Service would have to tell people coming into the country they have one year to file for asylum.9 Despite this understanding, an advisory of this nature never came out.
Members of Congress were not the only ones who were against the one-year filing deadline. Other immigration authorities, including the United Nations High Commissioner for Refugees (UNHCR), the Immigration and Naturalization Service (INS) (which was dissolved and reformed as part of the Department of Homeland Security (DHS)), and the acting Deputy Attorney General were also in opposition to the passage of this rule.10 The INS stated that the deadline was unnecessary because the Department had already taken significant measures to reduce fraud.11
The one-year filing deadline for asylum applications has had significant impacts since its enactment. Immigration courts denied at least 35,429 asylum claims between 1999 and 2005 because of this deadline.12 One such example is when an immigration judge denied asylum to a Gambian woman who was a victim of gender-based violence.13 She was married against her will at the age of fifteen and had been raped and was the victim of domestic violence and female genital mutilation.14 With her application for asylum, she submitted evidence of her Post-Traumatic Stress Disorder diagnosis as a result of her years of abuse. However, since she had not applied within the one-year window, the judge denied her asylum and, instead, granted withholding of removal.15 This decision left her in a state of uncertainty without continued protection nor the ability to permanently remain in the United States and live a life free from the abuse and fear she had experienced in her home country.16
Many attorneys have reported that the one-year filing deadline is the only reason their cases failed.17 The one-year filing deadline is an incredibly unfair rule because it has led immigration judges to deny asylum to victims of violence and abuse simply because they filed their asylum applications too late. Before its implementation, asylum applications could be filed at any time,18 and many successful claims were filed after one year of the application’s entry.19 The one-year bar to asylum puts a strict deadline on an application that has the ability to save the lives of so many immigrants. Many asylum seekers enter the country without knowledge of the one-year deadline,20 and being sent back to their countries of origin because they filed their applications too late puts their lives in peril as they will once again be subjected to the abuse and fear from which they suffered before coming to the United States.
[1] Immigration Equality, The One-Year Filing Deadline, https://immigrationequality.org/asylum/asylum-manual/ immigration-basics-the-one-year-filing-deadline (last visited Jul. 1, 2021).
[2] Karen Musalo, The Implementation to the One-Year Bar to Asylum, 31 Hastings Int’l & Comp. L. Rev. 693, 693 (2008).
[3] Immigration Equality, supra note 1.
[4] USCIS, Lesson Plan Overview: One-Year Filing Deadline, (May, 6, 2013), https://www.uscis.gov/sites/default/ files/document/lesson-plans/One_Year_Filing_Deadline_Asylum_Lesson_Plan.pdf.
[5] For more on the differences between applying affirmative and defensive asylum applications, see Explainer Series: What is Asylum?, Wm. & Mary L. School Immigr. Clinic Blog (July 13, 2021), https://wmimmigrationclinicblog.com/2021/07/13/explainer-series-what-is-asylum.
[6] Musalo, supra note 2, at 695.
[7] Id.
[8] Id.
[9] Id. at 695-696.
[10] Id. at 696.
[11] Id.
[12] Id. at 698.
[13] Id. at 700.
[14] Id.
[15] Id.
[16] American Immigration Council, The Difference of Asylum and Withholding of Removal, https://www.americanimmigrationcouncil.org/research/asylum-withholding-of-removal (last visited Jul. 19, 2021).
[17] Id. at 711.
[18] Ashkan Yekrangi, What is the One-Year Bar for Asylum?,Yekrangi & Associates(Jan., 5, 2018), https://www.yeklaw.com/blog/2018/january/what-is-the-one-year-bar-for-asylum.
[19] Musalo, supra note2, at 698.
[20] Yekrangi, supra note 18.
William & Mary Law School Immigration Clinic Blog 