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One of the most significant events in the modern history of asylum law in the United States

asylum law

Today may will be one of the most significant in the modern history of asylum law in the United States. Due to changes in the immigration and nationality act in 1996, asylum-seekers have been frustrated by the "one-year deadline" to making a claim for asylum in immigration court.

If one does not file within the one-year deadline, a person seeking the protection of US asylum law loses the right to make an asylum claim (and, if granted, the right to become a permanent resident and ultimately a citizen of the United States) and is instead left with two more difficult claims that require higher levels of proof, that also will not give the claimant legal status in the United States except not to be removed in future. (These claims are the treaty protections of withholding of removal and withholding under the Convention against Torture).

The application of the "one-year deadline" has been extraordinarily harsh for claimants detained at the border who frequently barely speak English, and who are given no clear instructions that the one-year deadline exists, even when they express a fear of returning to the home country and are successful in obtaining a positive "credible fear interview" finding.

Consider, for example, the plight of a female claimant from a Central American country seeking asylum based on domestic violence (and the fact that the home country will not protect her) who only speaks a dialect known as "Mam," and has absolutely no idea that she is under a one-year deadline for filing a formal asylum claim, even after passing screening for having a "credible fear" determination by an asylum officer.

This problem has now been addressed by a federal district court in Seattle Washington in the case of Mendez-Rojas v. Johnson. In this class-action lawsuit the court’s ruling orders the government to remove significant impediments to filing asylum applications within one year of arriving in the United States, as required by law.

Specifically, under the court’s ruling, the Department of Homeland Security must provide all class members—defined as individuals who enter the United States, express a fear of return to their home countries, and then are released from immigration custody—with written notice of the one-year deadline, and the government must accept as timely filed any asylum application from a class member that is filed within one-year of adoption of the notice. The court also ordered the government to adopt, publicize, and implement uniform procedural mechanisms that will ensure class members are able to file their asylum applications.

I cannot begin to tell you how heartening this ruling is for immigration lawyer like me, who struggle with this issue day in and day out, and get cases where the one-year deadline has already passed and clients with good asylum claims arbitrarily lose them because of a blind government attitude that of a blind "ignorance of the law is no excuse," even when applied to someone from a foreign country who has no idea whatsoever what American asylum law requires, and who could not reasonably be expected to know.

I applaud the court's ruling because I am convinced that it will save lives and bring a measure of procedural fairness back to our asylum laws, which are already notoriously complex and difficult to navigate.

This lawsuit was brought in part by The American Immigration Council, a nonprofit advocacy organization of the American Immigration Lawyers Association, of which I am a member. You can read more about this historic decision at the following link.

Brian D. O'Neill Attorney at Law, LLC

Immigration, Employment and Business Law

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