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2018 Asylum Update | One-Year Filing Deadline

| Apr 23, 2018 | Asylum

On March 29, 2018, a federal district court judge granted Summary Judgement on behalf of plaintiffs who were blocked from filing their asylum claims. In the ruling, Judge Ricardo S. Martinez held that the government’s failure to furnish sufficient notice of the general one-year filing deadline violated portions of the Immigration and Nationality Act, the Administrative Procedures Act, and the 5th Amendment Due Process clause. The upshot is that the Department of Homeland Security must now adopt and provide notice of the one-year filing deadline to all current and future class members who have been affected by the government’s dereliction. Additionally, the government has been ordered to adopt and publicize “uniform procedural mechanisms” that enable all class members to file their asylum cases in a timely manner.

This is a momentous holding with significant ramifications given that thousands of individuals who theoretically could have filed their asylum claims within the one-year timeframe were deprived of the opportunity due to insufficient notice or the government’s refusal to accept applications under certain conditions.

The Mendez Rojas decision covers two classes of people:

Class A (“Credible Fear Class”): All individuals who have been released or will be released from DHS custody after they have been found to have a credible fear of persecution within the meaning of 8 USC 1225(b)(1)(B)(v) and did not receive notice from DHS of the one-year deadline to file applications and

· are not in removal proceedings and who have either

o have not applied for asylum or

o applied for asylum within one year of their last arrival

Class B (“Other Entrants”): All individuals who have been or will be detained upon entry; express a fear of return to their country of origin; are released or will be released from DHS custody without a credible fear determination; are issued a Notice to Appear; and did not receive notice from DHS of the one-year deadline to file an asylum application set forth in 8 USC 1158(a)(2)(B). Class B is broken up into two groups:

· those who are not in removal proceedings and who either

o have not yet applied for asylum or

o applied for asylum after one year of their last arrival

· those who are in removal proceedings and who either

o have not yet applied for asylum or

o applied for asylum after one year of their last arrival

It is important to understand, however, that this court order does not change the one-year filing deadline. It only allows certain groups of people who were not reasonably informed about, or whose applications were improperly rejected, the chance to file their asylum cases even though they are now outside the one-year deadline. Otherwise, the recognized exceptions to filing late remain if there are 1) changed circumstances (such as a change in country conditions or a change in the applicant’s circumstance’s) that affect the applicant’s eligibility for asylum; or 2) extraordinary circumstances that relate to the delay in timely filing (such as death, serious illness, or ineffective assistance of counsel).

To learn more about asylum, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.

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