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3. The One-Year Filing Deadline
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>> 41 3 The One-Year Filing Deadline The first step, for an asylum officer who is analyzing a new asylum application , is the determination of whether the claim was filed on time. This new twist to the asylum standard took effect on April 16, 1998, as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Although the Refugee Act provides that any person from another nation who arrives in the United States may apply for asylum, the 1996 law states that this right to seek asylum “shall not apply” unless the would-be asylum seeker “demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.”1 The law, however, created two exceptions. A late-filing applicant may apply if he proves the existence of “changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application” within a year after entry.2 Such a person must also have applied within a “reasonable period” of time after the changed circumstances occurred,3 or within a “reasonable period given [the extraordinary] circumstances.”4 The wording of the 1996 law did not simply make late filing a factor in the asylum officer’s decision, or even a basis on which the asylum officer had to deny the application. Because it provided that an asylum seeker who filed late was not entitled by the Refugee Act even to apply for asylum, the law created a threshold requirement, a first line to be crossed even before the merits of an asylum application could be evaluated. At least, that is how DHS interpreted the law, for DHS required its asylum officers to analyze separately, in each case, apart from the officers’ determinations of the merits, whether the applicant had met the deadline. If the deadline was not met, DHS codes the case in its record as one that was “rejected” rather than one in which asylum simply was not granted. Other legal bars to asylum, such as the prohibition of asylum for persons who had committed certain crimes, continue to be folded into the analysis of whether asylum should be granted, and these bars are not recorded by DHS as “rejected” cases. The deadline does not bar applicants from being granted a different humanitarian status, called “withholding of removal.”5 Like asylum, this 42 > 43 attacks in the United States (especially the 1995 Oklahoma City bombing, which had nothing to do with immigrants or asylum applicants) and growing anti-immigrant sentiment fueled by certain politicians, they wanted to demonstrate that they were doing something to make American borders more secure.12 They supported the thirty-day deadline, among other proposals, to show their determination to do something about closing a border that many Americans, including President Clinton, thought too porous.13 This restrictive measure was adopted by the House Immigration Subcommittee, the House Judiciary Committee, and the Senate Immigration Subcommittee.14 Critics of the thirty-day proposal argued that there were many reasons why some asylum applicants did not apply until they had been in the United States for a long time. Among other things, many asylum applicants had to flee with little more than the clothes on their back. They arrived in the United States traumatized and disoriented, unable to speak English, and their first priorities were to get housed and fed. Many suffered from posttraumatic stress disorder and other symptoms of torture. They distrusted governmental authorities , who had oppressed them in their home countries. They could not afford counsel and often did not know how to locate pro bono attorneys. Often they did not even know that the U.S. had a formal asylum application procedure.15 The critics were not able to defeat completely the idea of imposing a deadline on asylum applications, but in later stages of the legislative process, they were able to win significant modifications of the thirty-day proposal. The limit was changed to one year, and Congress adopted the two important exceptions to the limit—for “changed circumstances” and for “extraordinary circumstances”—that remain in the law.16 The Immigration and Naturalization Service, which was later dissolved and succeeded by DHS, wrote regulations17 and a training manual18 for asylum officers to flesh out the meaning of the exceptions. The regulations provide that the “changed circumstances” exception applies not only to the changed conditions in the applicant’s...