Can I Still Apply for Asylum After the One Year Filing Deadline?

In our past blog post, How Do I Obtain Asylum in the United States, we explained how you must file your application within one year of your last entry into the United States or present evidence that you qualify for an exception to the one year filing deadline. If you entered the U.S on a visa, the one year period is counted from the day when your visa expired.

If you missed the one year filing deadline, you may still be eligible for asylum if one of the following two exceptions applies:

1. Satisfactory evidence that you experienced a “changed circumstance” material to your eligibility for asylum, and that you filed within a reasonable period after the changed circumstance occurred; or
2. Satisfactory evidence that you experienced an “extraordinary circumstance” directly related to your filing delay, and that you filed within a reasonable period given those circumstances. You must also show that you did not intentionally create such extraordinary circumstances (through your own action or inaction).

What may qualify as a “changed circumstance?”

The following are examples of what might qualify as a “changed circumstance”:

• Changes in your country of nationality;

For example, you were not afraid to return home when you had entered the U.S., but you are afraid now, because people like you are now persecuted in your home country even though they were not when you left.

• Changes in U.S. asylum law making you eligible for asylum now even though you were not before;
• Changes in your personal circumstances;

For example, you started being involved in political or religious activities after leaving your home country, and this involvement places you at risk of persecution.

• Loss of your spousal or parental relationship to the principal applicant in a previous asylum application.

For example, your marriage with your spouse (principal applicant in the initial asylum application) has ended in divorce, or your parent (principal applicant in the initial asylum application) has passed away, requiring you to now apply on your own.

What may qualify as an “extraordinary circumstance?”

The following are examples of what might quality as an “extraordinary circumstance”:

• Serious illness or disability;

For example, you suffered a serious psychiatric or medical illness during at least a part of the one year filing period.

• Death or serious illness or incapacity of an immediate family member or your legal guardian;
• Legal disability;

For example, you were mentally impaired during the one year filing period.

• Other personal factors so extreme that they impacted your functioning and made you unable to file on time;

For example, you suffered extreme isolation within an immigrant community, severe family opposition to applying for asylum, or profound cultural and language barriers.

• Ineffective assistance of counsel;

For example, your lawyer delayed filing your case.

• Lawful status during at least a part of the one-year period, or
• Errors in submission of the initial asylum application;

For example, your application was filed within a year, but it was rejected for corrections, and then you refiled it more than one year after your arrival.

Once you establish the existence of an exception, you must file within a “reasonable time” after the changed or extraordinary circumstance.

What is “reasonable?” This depends on the unique combination of all the facts of your case. Generally, asylum officers look at what a reasonable person in your unique position would have done. To that end, the following relevant factors may be considered:

• any delay in when you first became aware of the changed or extraordinary circumstance;
• your educational background and language skills;
• how long it takes to obtain legal help, and
• any ongoing physical or emotional effects of your persecution.

There are no exact rules that define what a “reasonable time” may be but it would be prudent to file your application as soon as possible after the changed or extraordinary circumstance occurred.

It is important to note that the list of “changed” and “extraordinary” circumstances presented here are by no means an exhaustive list. Other events might qualify as a “changed” or “extraordinary” circumstance for the purposes of this exception. However, keep in mind that exceptions to the one year filing deadline can be difficult to obtain.

Our experienced immigration attorneys have had great success in establishing exceptions to the one year filing deadline for our clients. Let the experienced lawyers at Law Offices of Azita M. Mojarad, P.C. analyze your case to determine if any exceptions apply to your circumstances and also help you successfully submit and obtain your approval.