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September 29, 2010

The Asylum Filing Deadline

Denying Protection to the Persecuted and Undermining Governmental Efficiency

Human Rights First report calling on Congress to eliminate a technical asylum filing deadline in U.S. law that has barred thousands of legitimate refugees with well-founded fears of persecution from receiving asylum in the United States.

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The filing deadline on U.S. asylum requests, enacted as part of a 1996 immigration law, should be eliminated. As Human Rights First’s research confirms, this technical filing requirement is barring legitimate refugees with well-founded fears of persecution from receiving asylum in the United States and is leading to the unnecessary expenditure of government resources. The deadline pushes the cases of credible refugees into the overburdened immigration courts, diverts limited time and resources that could be more efficiently allocated to assessing the actual merits of asylum applications, and is not needed to counter abuse in the system.

In 1996, Congress passed, and President Clinton signed into law, a provision barring an individual from seeking asylum if he or she did not apply for protection within a year of arriving in the United States. In the 12 years since the deadline began barring asylum requests, more than 53,400 applicants have had their requests for asylum denied, rejected or delayed due to the filing deadline.  Despite the fact that there are exceptions, this filing deadline has barred from asylum refugees who have suffered persecution or have well-founded fears of persecution in their home countries. These refugees have included victims of political, religious, ethnic, and other forms of persecution from Burma, China, Colombia, Guinea, Iran, and Sierra Leone.

Through its research and pro bono  legal representation of asylum seekers in the United States, Human Rights First has learned of many genuine refugees who have had their asylum requests rejected, denied or significantly delayed due to the filing deadline and its application by U.S. adjudicators. For example, as detailed in this report:

  • An Eritrean woman, who was tortured and sexually assaulted due to her Christian religion, was denied asylum in the United States based on the filing deadline even though an immigration judge found her testimony credible and compelling.
  • A student who was jailed by the Burmese military regime for his pro-democracy activities was denied asylum by the United States based on the filing deadline despite his isolation in the U.S. and lack of English.
  • A Chinese woman who feared persecution and torture in China for her assistance to North Korean refugees was determined by the immigration judge to face a clear probability of torture but was denied asylum based on the filing deadline and ordered removed by the U.S. Board of Immigration Appeals.
  • A man from Togo who was tortured because of his pro-democracy activities had his asylum request rejected based on the filing deadline, and the request was only granted - three years after his initial filing - after subsequent immigration court litigation.
  • A gay man who was attacked, tortured and faced a clear probability of persecution in Peru had his asylum request rejected based on the filing deadline.
  • A Congolese nurse who was persecuted and tortured due to her human rights advocacy and her Catholic faith was denied asylum based on the filing deadline even though the immigration court found her to be a credible refugee who faced a clear probability of persecution.
  • A teenager who was battered, kidnapped, and raped in Albania while plans were made to traffic her into prostitution was denied asylum after her application was ruled untimely.

The United States has long led the international community in protecting refugees who have fled from political, religious and other forms of persecution. But because of the filing deadline, t he United States is denying protection to refugees in ways that are inconsistent with this county’s leadership in, and commitment to, protecting refugees in accordance with the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. 

Many refugees are unable to file within a year of their arrival: they may arrive in this country traumatized from persecution, unable to speak English and without any knowledge of the U.S. asylum system. Some do not know that they might be eligible for asylum. Many do not have the resources to retain legal counsel, and pro bono  resources are scarce or simply not available in many parts of the country. In a recent study conducted by Human Rights First, we found that 20 percent of the new pro bono  clients it took on for legal representation with their asylum claims had not, prior to acceptance into our program, filed for asylum within a year of their arrival, despite the fact that they were refugees in need of protection.

Refugees Denied Asylum

Not only are bona fide refugees denied asylum based on the filing deadline, but the deadline also undermines the protection of refugees in other ways, including by:

  • Returning some refugees to persecution and leaving others with only temporary forms of protection in the U.S. that put them at risk of deportation, detention, and prolonged instability; and
  • Dividing refugee families, leaving young children stranded in difficult and dangerous circumstances abroad and separated from their refugee parents in the United States who have not been provided with the immigration status (of asylum) that would allow them to petition to bring their children and spouses to safety in the U.S.

The exceptions to the filing deadline – for changed or extraordinary circumstances – have not prevented genuine refugees from being denied asylum in the United States. Indeed, as detailed in this report, many refugees with well-founded fears of persecution have been denied asylum by U.S. adjudicators despite the fact that there are exceptions to the filing deadline. The lack of federal court review on the issue in most circuits also means that refugees in many parts of the country cannot get mistaken filing deadline denials corrected by the federal courts.

Inefficient and Counterproductive

The filing deadline undermines the efficiency of the asylum and immigration court adjudication systems. The overwhelming majority of the over 53,400 cases rejected based on the filing deadline at the U.S. asylum office have been referred into the immigration court removal system.5  As detailed in this report, the filing deadline and its application by U.S. adjudicators has led the United States to:

  • Push the cases of genuine refugees – estimated to number over 15,000 (more than 21,000 individuals) - into the over-burdened immigration court system instead of resolving them more efficiently at the initial asylum office level;6
  • Delay the adjudication of asylum cases that were referred into the backlogged immigration court system but could have otherwise been granted asylum more promptly before the asylum office;
  • Divert time and resources at both the asylum office level and the immigration courts, expending limited government resources litigating a technicality, when those resources could instead be allocated to evaluating the actual merits of asylum cases, or could simply be saved or re-allocated to other matters; and
  • Undercut governmental interests in integration by depriving genuine refugees of the ability to become permanent residents and U.S. citizens while also making it more difficult for them to access jobs and education.

The System Has Measures to Combat Fraud

While proponents of the filing deadline were, at the time it was created, concerned about the abuse of the asylum system by individuals filing fraudulent claims, this procedural impediment has actually prevented refugees with credible  non-fraudulent asylum cases from receiving asylum in the United States.7  Moreover, as detailed in this report, U.S. immigration authorities implemented a series of major reforms to the asylum system beginning in 1995. These reforms targeted incentives for filing fraudulent applications, increased staffing at the asylum office, and improved the pace of adjudications so that individuals who did not have credible cases were put into the deportation process much more quickly. In the intervening years, additional controls to counter abuse have also been added to the system. As detailed in this report, there are numerous mechanisms in place that are actually designed to combat abuse and fraud, including:

  • Asylum applications must be signed under penalty of perjury by both the asylum applicant and the individual preparing the application to ensure appropriate consequences for false statements;
  • Any fraudulent asylum applicants are permanently barred from receiving any immigration benefit, meaning that they would never be able to work legally in the United States or receive lawful permanent resident status here;
  • Each asylum seeker’s identity must be checked in a series of Department of Homeland Security and other federal databases - these checks can help identify fraudulent cases as well as any individual who might present a security risk;
  • Asylum officers and immigration judges are not authorized to grant asylum until the applicant’s fingerprints have been run through the FBI fingerprint database, and asylum applicants’ names are also checked against the FBI name database;
  • U.S. Citizenship and Immigration Services has an Office of Fraud Detection and National Security that aids in identifying fraudulent asylum claims; and
  • Documents provided in support of asylum claims are often sent to the Department of Homeland Security’s Forensic Document Laboratory where technicians analyze the documents’ authenticity and, compare them to the lab’s library of foreign travel and identity documents.

And, of course, individuals who file fraudulent claims - as well as preparers and attorneys - can be investigated and criminally prosecuted.

When the filing deadline was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), then President Clinton said that he would “seek to correct provisions in this bill that are inconsistent with international principles of refugee protection, including the imposition of rigid deadlines for asylum applications.” The former Immigration and Naturalization Service (INS) had stressed that the imposition of a filing deadline was a response to a problem that had already been addressed through its reforms – reforms that U.S. immigration authorities subsequently reported had successfully addressed abuse in the asylum system.

Recommendation: Eliminate the Filing Deadline

By removing this procedural impediment, Congress would improve the effectiveness of the asylum adjudication system and reaffirm this country’s commitment to protecting those who seek refuge from persecution. At the time the law was enacted, several key Congressional supporters of the deadline made clear that it was not intended to bar legitimate applicants and that they were committed to revisiting the filing deadline if it did not provide adequate protection for these asylum seekers. The deadline has not provided this protection, and has instead prevented genuine refugees from receiving asylum, while also causing counterproductive inefficiencies in the adjudication system. It is time to revisit – and eliminate – the filing deadline.