Draconian Deadline: Asylum Filing Ban Denies Protection, Separates Families

The one-year-filing deadline bar on asylum claims is a refugee ban. Enacted into law in 1996, the filing deadline bans asylum for any individual who did not apply for protection within one year of arriving in the United States, with very limited exceptions. The ban is inefficient, counterproductive, inhumane, and unlawful. It returns refugees to persecution and torture in violation of U.S. law and treaty obligations, leaves refugees in permanent limbo with inadequate forms of humanitarian protection, indefinitely separates families, and undermines integration. The U.N. Refugee Agency (UNHCR) has confirmed that denial of legitimate asylum claims based solely on failure to file before a deadline violates international law.

The filing deadline ban is a technical requirement that has blocked tens of thousands of bona fide refugees from asylum. By 2008, more than 53,400 asylum seekers had had their cases denied, rejected, or delayed due to the filing ban. Refugees denied asylum solely due to the filing deadline ban include, for instance: a Guinean man who was imprisoned and tortured by military police officers for being a suspected dissident; an LGBT Salvadoran man who was abducted by government agents and physically, sexually, and verbally assaulted for his sexual orientation; and a Tanzanian woman who was detained by her country’s government and raped, burned, and beaten. The ban is especially draconian because it is often impossible for refugees to apply for asylum within one year, as many are unable to secure legal counsel, do not speak English, do not know that they are eligible for asylum or that they are required to apply within one year, or are traumatized by the persecution or torture they suffered.

Barred from asylum by the filing deadline, the only option for many refugees is to seek withholding of removal or protection under the Convention Against Torture (CAT), extremely limited forms of relief that do not confer permanent legal status, force refugees to live under constant threat of deportation, and do not allow them to reunify with their families. These deficient forms of protection are often impossible to secure because they require applicants to meet a heightened standard of proof. Refugees denied asylum solely due to the filing ban who are deemed not to meet the high burden for withholding of removal or protection under CAT are ordered deported to danger.

The U.S. Citizenship Act of 2021, which was introduced in Congress in February 2021, proposes to eliminate the asylum filing deadline ban, among other provisions. A provision to eliminate the filing deadline ban was also included in the bi-partisan Senate immigration reform bill of 2013, as well as in successive versions of the Refugee Protection Act. Human Rights First welcomes efforts to repeal the filing deadline ban and has opposed its use for decades. The elimination of the filing deadline ban would:

• Prevent the return of refugees to persecution and torture based on a technical filing deadline in violation of U.S. obligations under the 1951 Refugee Convention, 1967 Refugee Protocol, CAT, and the International Covenant on Civil and Political Rights;
• Permit refugees with well-founded fears of persecution to secure stable legal status with a path to citizenship and live in safety in the United States, rather than leaving them only with deficient protection from removal that is difficult to obtain and leaves refugees in permanent limbo, unable to rebuild their lives;
• Prevent the separation of refugee families, which is the direct result of a ban that deprives refugees of asylum and its process for bringing family members to safety, and instead ensure refugees can reunite with their spouses and children, who are often stranded in danger in their home countries; and
• Reduce the immigration court backlog, which has skyrocketed to over 1.3 million cases, by stopping the wasteful and needless referral of cases from the Asylum Office to the immigration courts solely because of the filing deadline ban.