What is the asylum bar? Aliens must apply for asylum within 1 - PDF document

5/29/2018 Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program One-Year Asylum Bar • What is the asylum bar? • Aliens must apply for asylum within 1 year of arrival into the U.S. • INA § 208(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 1

5/29/2018 One-Year Asylum Bar • There are exceptions to 1-year filing deadline. • INA § 208(a)(2)(D); 8 C.F.R. § 1208.4(a)(4) and (5). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program One-Year Asylum Bar • Aliens who: • do not apply within 1 year, AND • do not establish an exception applies • Are ineligible for asylum. Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 2

5/29/2018 One-Year Asylum Bar • Derivative asylum applicants without own primary I-589 not subject to 1-year filing deadline by bolstering his or her derivative claim with evidence that the he or she also faces persecution. • Gatimi v. Holder , 578 F.3d 611, 618 (7th Cir. 2009). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program One-Year Asylum Bar • Circuit split re whether the 1-year filing deadline applies to derivative applicant minors. • Compare El Himri v. Ashcroft , 378 F.3d 932 (9th Cir. 2004) with • Bernal-Rendon v. Gonzales , 419 F.3d 877, 880 (8th Cir. 2005). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 3

5/29/2018 One-Year Asylum Bar • Asylum bar does not apply to: • withholding of removal under the INA. • protection under the Convention Against Torture. Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program One-Year Asylum Bar • Untimely asylum application may be found to be frivolous under section 208(d)(6) of the Act. • Matter of M-S-B- , 26 I&N Dec. 872 (BIA 2016). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 4

5/29/2018 Calculating the 1-Year Period • How to calculate the start of the 1-year period. Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Calculating the 1-Year Period • The 1-year period starts from the day after the date of alien’s arrival in U.S. • Minasyan v. Mukasey , 553 F.3d. 1224, 1227-29 (9th Cir. 2009). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 5

5/29/2018 Calculating the 1-Year Period • Date of entry or arrival on the NTA, • where undisputed, admitted, or conceded. • See generally, Hakopian v. Mukasey , 551 F.3d 843 (9th Cir. 2008). • See also Gjyzi v. Ashcroft , 386 F.3d 710, 714 (6th Cir. 2004). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Calculating the 1-Year Period • Date of entry or arrival on the NTA not necessarily clear & convincing evidence • but must be considered with other record evidence. • Zheng v. Mukasey , 552 F.3d 277, 286 (2d Cir. 2009). • See also Gjyzi v. Ashcroft , 386 F.3d 710, 714 (6th Cir. 2004). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 6

5/29/2018 Calculating the 1-Year Period • Aliens who entered U.S. prior to April 1, 1997: • 1-year period calculated from April 1, 1997. • 8 C.F.R. § 1208.4(a)(2)(ii). • See also Lumataw v. Holder , 582 F.3d 78, 86 (1st Cir. 2009). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Calculating the 1-Year Period • Error to require exact date of departure where other record evidence shows alien “necessarily” filed application within 1 year of arrival. • Khunaverdiants v. Mukasey , 548 F.3d 760, 766 (9th Cir. 2008). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 7

5/29/2018 Calculating the 1-Year Period • How to calculate the end of the 1-year period. Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Calculating the 1-Year Period • End date is calculated from the date I-589 filed whether: • affirmatively before an AO with DHS or • defensively before IJ. • Matter of S-B- , 24 I&N Dec. 42, 44 (BIA 2006). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 8

5/29/2018 Calculating the 1-Year Period • If I-589 mailed to DHS: • the date of mailing rather than the date of receipt is used. • 8 C.F.R. § 1208.4(a)(2)(ii). • See also Nakimbugwe v. Gonzales , 475 F.3d 281, 284- 85 (5th Cir. 2007). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Calculating the 1-Year Period • When last day falls on weekend or holiday: • the 1-year period extended until end of the next day that is not a weekend or holiday. • 8 C.F.R. § 1208.4(a)(2)(ii). • See also Jorgji v. Mukasey , 514 F.3d 53, 55 (1st Cir. 2008). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 9

5/29/2018 Calculating the 1-Year Period • What if alien has made more than one entry into the U.S.? Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Calculating the 1-Year Period • Date calculated from: • date of last arrival in U.S. or • April 1, 1997 • whichever is later. • 8 C.F.R. 1208.4(A)(2)(ii). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 10

5/29/2018 Calculating the 1-Year Period • “last arrival” means the applicant’s most recent arrival in the U.S. • Matter of F-P-R- , 24 I&N Dec. 681, 683-84 (BIA 2008). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Calculating the 1-Year Period • What if an alien has filed more than one asylum application? Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 11

5/29/2018 Calculating the 1-Year Period • If later I-589 found to be a “new” application: • filing date of the subsequent “new” application controls. • Matter of M-A-F- , 26 I&N Dec. 651 (BIA 2015). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Calculating the 1-Year Period • A “new” application is not the same as: • a renewed, • amended, or • updated application. Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 12

5/29/2018 Calculating the 1-Year Period • Where an initial I-589 filed under “a false predicate” and later I-589 filed after alien placed in removal proceedings: • filing date of the second I-589 applies. • Matter of M-A-F- , 26 I&N Dec. 651, 656 (BIA 2015). Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program Burden of Proof • Who has the burden of proof? Advanced Adjudication Issues in Asylum Law: An Examination of the One-Year Bar and One Central Reason Standard 2018 Executive Office for Immigration Review Legal Training Program 13