The One-Year Bar to Asylum in the Age of the Immigration Court Backlog
63 Pages Posted: 3 Sep 2016 Last revised: 6 Oct 2016
Date Written: October 4, 2016
Imagine being forced to flee your home, with one of your children and your few worldly possessions, and undergoing the perilous journey north to seek safety and protection. Upon arrival in the United States, you are immediately detained and questioned about your intentions in seeking admission to the U.S. You explain that you fear for your life and are seeking asylum protection. You may even undergo a detailed interview with an asylum officer, who finds that you have established a significant possibility of establishing asylum eligibility. You are released from detention to pursue your asylum claim in immigration court. You diligently attend check-ins with an Immigration and Customs Enforcement officer for the next two years and struggle to find affordable legal representation as you await your first court date – scheduled two years after your arrival. When you appear at that court date, without an attorney, you learn for the first time that you were required to file an application for asylum with the immigration court within one year of your arrival. Your failure to do so bars you from asylum eligibility. You are now only eligible for a lesser form of relief and will live in limbo – you will never be reunited with your children, who remain in danger in your home country, you can never travel abroad, and will never become a permanent resident or a U.S. citizen.
This is the precise situation faced by thousands of asylum seekers navigating our complex immigration system alone. More than half of the recently arrived asylum seekers, largely women and children from Central America, lack legal representation. At the same time, our immigration courts are overwhelmed, with over 500,000 cases pending and a wait of on average almost two years for the first court hearing. In the meantime, asylum seekers are mandated, by a twenty-year-old rule, to file their asylum applications within one year of arrival. Despite this the U.S. government provides no notice of that requirement and thus asylum seekers, short of securing legal competent counsel, have no meaningful opportunity to file within one year. This is the first article to address the interplay of the one-year filing deadline and the immigration court backlogs. This article is also the first to analyze EOIR’s attempted, but incomplete solution to this problem. In doing so, the article sets out the required complementary reforms that must be taken to ensure access to justice, specifically to provide a fair and meaningful opportunity to apply for asylum for represented and pro se asylum seekers.
Keywords: asylum, immigration, procedure, persecution, judges, policy, agencies, legislation, regulation
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