These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
one year filing deadline
The Eleventh Circuit has reaffirmed that it lacks jurisdiction to review the agency’s determination that an asylum application is untimely and does not qualify for an exception to the one-year filing deadline. The court concluded that the Supreme Court’s recent decision in Guerero-Lasprilla and Wilkinson did not mandate a contrary conclusion.
The full text of APA v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202110496.pdf
The Ninth Circuit has rejected a petitioner’s argument that “youth, language barrier, ignorance of the legal requirement to file [the asylum] application within a year, and stress from fleeing [the applicant’s] home country, constitute a ‘form of incapacity or legal disability.’”
The full text of Martinez Alquijay v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/27/20-70470.pdf
The Second Circuit has granted a petition for review of a denied asylum case, finding the decision was riddled with errors. First, the agency erroneously required that a changed circumstance (for one-year filing deadline tolling) not be one caused by the applicant. Second, the agency’s discretionary denial of asylum was based solely on the applicant’s criminal history, without any consideration of his equities. Third, the agency erroneously qualified the applicant’s wire fraud as a crime against the person, which brought it within the ambit of a particularly serious crime. The court noted that wire fraud is a crime against property, not against a person. Fourth, the judge made no reference to an expert declaration, nor gave any reason for discounting it.
The full text of Ojo v. Garland can be found here:
The Board of Immigration Appeals has determined that an applicant who merely continues an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm has not established changed circumstances that would excuse an untimely asylum application.
“The activity the respondent engaged in while in the United States— emailing Christian proselytizing messages to people in China—is substantially similar to the actions he undertook in China and represents a continuation of those religious activities without a significant change. The fact that the respondent continued his proselytizing activities after he entered the United States (albeit through a different medium) does not support a finding of changed circumstances since it was this very activity (proselytizing) in China that led him to leave his country originally. The respondent does not allege that he became involved in new activities related to Christianity in the United States; nor does his activity in this country raise a claim for asylum under a separate protected ground or on the basis of a newly articulated claim of future persecution. On the contrary, the respondent’s present claim remains premised on the same fear of the Chinese authorities he possessed prior to coming to the United States, as well as the same protected ground, and therefore does not adequately set forth a change in the respondent’s particular circumstances. Further, while the emails the respondent distributed may have generated renewed interest from the authorities, the record does not reflect that the respondent’s risk of persecution in China increased as a result of his email correspondence such that his claim to asylum, based on his activity in the United States, is significantly changed from his claim of past harm. In essence, it is the same claim he could have made during the 1-year period after he entered the United States.”
The full text of Matter of D-G-C- can be found here:
The Second Circuit has determined that changed circumstances arising after the filing of a Form I-589 can still be used to invoke an exception to the one-year filing deadline for asylum. “Our reading of § 1158(a)(2)(D) and these other provisions of the INA persuades us that Congress did not intend to bar the agency from considering 7 the asylum application of an applicant who shows changed circumstances that 8 first arise after the application is filed, and did not require that the changed 9 circumstances even relate to the delay in filing. To the contrary, Congress clearly 10 contemplated that the agency could consider a change in circumstances such as 11 the one alleged here at several stages in an applicant’s proceedings—even when 12 the change bears no relation to the reason for the delay, and even as late as a 13 motion to reopen a final order of removal.”
The full text of Ordonez Azmen v. Barr can be found here:
The Second Circuit has held that an asylum applicant may “raise multiple claims in her asylum application, even if the changed circumstance relates only to one proffered basis for asylum.” The petitioner filed for asylum based on having undergone a forced abortion and also on the basis of a religious conversion. She submitted her application over a decade after her arrival to the United States, but within one month of her conversion to Christianity. The Immigration Judge (IJ) found that the petitioner was credible on all counts, but that there was insufficient evidence of persecution of Christians in China to grant the asylum application on that basis. The IJ did not consider the petitioner’s asylum claim based on her forced abortion because the IJ determined that the claim was not timely filed, but the IJ found Yang’s story credible and granted her withholding of removal on the basis of that claim.
“In our first look at the plain language of the statute, we observe that the relevant section clearly states that ‘an application for asylum of an alien may be considered . . . if the alien demonstrates . . . changed circumstances which materially affect the applicant’s eligibility for asylum.’ The plain language of the statute thus makes clear that changed circumstances provide for the consideration of an application for asylum, as opposed to a specific claim for asylum.”
The full text of Yang v. Barr can be found here:
The Fourth Circuit has determined that new facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance. An applicant need not demonstrate that he did not have a valid asylum claim prior to the changed circumstance.
The full text of Romero Zambrano v. Sessions can be found here:
The Second Circuit has deferred to the Board of Immigration Appeals' decision in Matter of F-P-R-, which held that the one year filing deadline for asylum must be calculated from the applicant's last entry into the United States. In so doing, the court overruled its prior precedent, which held that the filing deadline would not be tolled by a brief departure from the United States.
The full text of Linares-Urrutia v. Sessions can be found here:
The Board of Immigration Appeals has determined that when an applicant for asylum fabricates his entry date, thus making it appear that he has met the requirement for filing asylum within one year of entry, an Immigration Judge can properly find that he filed a frivolous asylum application. The fabricated entry date is material to the asylum claim, insomuch as the filing deadline is a statutory requirement for eligibility. It does not matter that, in reality, the asylum application is time barred because no exception to the one-year filing deadline exists. The application can still be deemed frivolous.
The full text of Matter of M-S-B- can be found here:
The Board of Immigration Appeals (BIA) determined that where an applicant files two applications for asylum - one before the effective date of the REAL ID Act and one after the effective date - the later filing controls for determining whether the provisions of the REAL ID Act apply to the applicant. A second filing will be considered a new application, as opposed to a supplement, if it is premised on a previously unraised basis for relief (i.e. fear of persecution based on a different protected ground) or if it is predicated on a new factual basis. Similarly, the date of the later-filed application controls for determining whether an applicant has met the one-year filing deadline for asylum if the first application is found to be fraudulent. The BIA also used broad language suggesting that even if the first application was not fraudulent, the date of filing of the second application would control for the filing deadline. Specifically, the BIA stated that "[t]he date the second asylum application was filed is controlling in determining the timeliness of the respondent's application for relief."
The full text of Matter of M-A-F- can be found here: http://www.justice.gov/eoir/file/762676/download
In a brief but interesting decision, the Ninth Circuit reminded the agency of the proper standard for evaluating whether changed country conditions can justify the untimely submission of an asylum application. Specifically, the Ninth Circuit stated that the applicant's subjective state of mind is not the only relevant factor in the analysis. "Whether Enkhbold’s elevation from Mayor of Ulaan Bataar to Prime Minister of Mongolia was the real reason petitioners decided to file their asylum applications or just an 'after thought,' as the IJ concluded, has no role in the changed circumstances analysis. The correct legal standard is whether changed country conditions materially affect the applicant’s eligibility for asylum. This standard does not preclude an individual who has always feared persecution from seeking asylum because the risk of that persecution increases. . . . An applicant is not required to file for asylum when his claim appears to him to be weak; rather he may wait until circumstances change and the new facts make it substantially more likely that his claim will entitle him to relief. In such cases, we may recognize changed circumstances." An excellent summary of what is sometimes a difficult issue to argue before the Immigration Judge - clients do not have to file for asylum the instant they have a fear of returning, but rather, can wait until events in their home country change and their asylum claims strengthen.
The full text of Tomsuren and Burentugs v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/05/28/11-71777.pdf
