The Asylum Filing Deadline: Denying Protection to the Persecuted and Undermining Government Efficiency
In 1996, Congress passed, and President Clinton signed into law, a provision barring an individual from 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 went into effect, thousands of bona fide refugees with well-founded fears of persecution have had their requests for asylum denied, rejected or delayed due to the filing deadline. The filing deadline leads to the unnecessary expenditure of government resources by pushing the cases of credible refugees into the overburdened immigration courts, diverting 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. Congress should eliminate the asylum filing deadline.
The filing deadline should be eliminated for the following reasons:
1. The filing deadline bars genuine refugees from asylum.
Despite the fact that there are exceptions, the 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. Examples include:
- 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.
2. The filing deadline undermines the efficiency of the asylum and immigration court adjudication systems.
- Clogging the immigration courts: Thousands of cases have been rejected at the U.S. asylum office on the basis of the filing deadline and pushed into the over-burdened immigration court system instead of being resolved more efficiently at the initial asylum office level;
- Delaying adjudication: The adjudication of asylum cases that could have otherwise been resolved more promptly before the asylum office are delayed for extended periods of time when referred into the backlogged immigration court system; and
- Diverting time and resources: The filing deadline diverts 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.
3. The filing deadline leaves refugees in legal limbo and divides families.
The filing deadline leads some refugees to be returned to persecution and leaves others with only a temporary form of protection – withholding of removal – in the United States that does not provide a path to permanent residence and keeps them at risk of deportation, detention, and prolonged instability. Withholding of removal does not allow refugees to petition to bring their children and spouses to safety in the United States, keeping refugee families divided and leaving young children stranded in difficult and dangerous circumstances abroad. Ironically, withholding of removal requires a higher burden of proof to qualify but fails to provide the same protections as asylum.
4. The availability of exceptions does not address the problems caused by the filing deadline.
The exceptions to the filing deadline – changed or extraordinary circumstances that relate to the delay in filing – have not prevented genuine refugees from being denied asylum in the United States. 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 many circuits also means that refugees in many parts of the country cannot get mistaken filing deadline denials corrected by the federal courts.
5. There are numerous mechanisms in place that are actually designed to combat abuse and fraud in the system. A deadline is not the solution to these concerns.
- 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 making 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 permanent lawful 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 asylum officers may also refer suspected fraudulent applications to U.S. Immigration and Customs Enforcement for criminal investigation and prosecution;
- 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, in the case of official documents, compare them to the lab’s library of foreign travel and identity documents; and
- Individuals who file fraudulent claims – as well as preparers and attorneys – can be investigated and criminally prosecuted.