Lesson Plan Overview

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

MAY 6, 2013 ONE -YEAR FILING DEADLINE

Course

Refugee, Asylum, and International Operations Directorate Officer Training

Asylum Division Officer Training Course

Lesson

One-Year Filing Deadline

Rev. Date

May 6, 2013

Lesson Description

This lesson describes the statutory bar to applying for asylum more than

one year after an alien’s date of last arrival. Through discussion of the

statute, the implementing regulation, and the review of examples, the

lesson explains the standard of proof and exceptions to the one-year

filing deadline.

Terminal Performance

Objective

Given an asylum application to adjudicate in which the one-year filing

deadline or a previous denial is at issue, the asylum officer will be able

to properly determine if an applicant is eligible to apply for asylum.

Enabling Performance

Objectives

1. Identify to what extent the one-year filing rule is at issue in a

given case. (ACRR4)(AA1)

2. Apply the clear and convincing evidentiary standard to determine

if an asylum application complies with the one-year filing rule.

(ACRR4)(AA1)

3. Explain the exceptions to the one-year filing rule. (AA3)(AIL1)

4. Identify all relevant factors in evaluating credibility with respect

to the one–year filing rule. (AAS5)

5. Determine whether an applicant is barred from applying for

asylum. (ACRR3)(AA3)

Instructional Methods

Lecture, discussion, practical exercises

Student References /

Materials

INA §§ 208(a); 101(a)(42); 8 C.F.R. § 208.4(a); Matter of Y-C-, 23 I &

N Dec. 286, 288 (BIA 2002); Vahora v. Holder, 641 F.3d 1038 (9th Cir.

2011).

Method of Evaluation

Practical exercise, written exam

Background Reading

Joseph E. Langlois. Asylum Division, Office of International Affairs.

Procedures for Implementing the One-Year Filing Deadline and

Processing Cases Previously Denied by EOIR, Memorandum to Asylum

Office Directors, et al. (Washington, DC: Jan. 4, 2002), 11 p. plus

attachments. (See Asylum lesson plan, Mandatory Bars Overview and

Criminal Bars to Asylum and RAIO Discretion Training Module)

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

MAY 6, 2013 ONE -YEAR FILING DEADLINE

Critical Tasks

Skill in identifying information required to establish eligibility. (4)

Knowledge of policies and procedures for one-year filing deadline. (4)

Knowledge of mandatory bars and inadmissibilities to asylum eligibility. (4)

Knowledge of the criteria for establishing credibility. (4)

Skill in determining materiality of facts, information, and issues. (6)

Skill in analyzing complex issues to identify appropriate responses or decisions. (5)

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

MAY 6, 2013 ONE -YEAR FILING DEADLINE

TABLE OF CONTENTS

I. INTRODUCTION .......................................................................................................................... 4

II. OVERVIEW ................................................................................................................................... 4

III. APPLICABILITY .......................................................................................................................... 5

IV. DETERMINING WHETHER THE APPLICATION WAS FILED WITHIN THE ONE-

YEAR PERIOD .............................................................................................................................. 5

A. Calculating the One-Year Period ............................................................................................. 5

B. Burden and Standard of Proof.................................................................................................. 6

V. EXCEPTIONS TO THE ONE-YEAR RULE ............................................................................. 9

A. Changed Circumstances ........................................................................................................... 9

B. Extraordinary Circumstances ................................................................................................. 13

C. Burden and Standard of Proof................................................................................................ 21

VI. FILING WITHIN A REASONABLE PERIOD OF TIME ...................................................... 22

A. Overview ................................................................................................................................ 22

B. Delayed awareness ................................................................................................................. 23

C. Evaluation of the “reasonable period of time” ....................................................................... 23

VII. CREDIBILITY ............................................................................................................................. 25

A. Overview ................................................................................................................................ 25

B. Totality of the Circumstances ................................................................................................ 25

VIII. SUMMARY .......................................................................................................................... 32

A. Filing Deadline Requirement ................................................................................................. 32

B. Calculating the One-Year Period ........................................................................................... 32

C. Burden and Standard of Proof for One-Year Period .............................................................. 32

D. Exceptions -- Changed or Extraordinary Circumstances ...................................................... 32

E. Standard and Burden of Proof for Establishing a Changed or Extraordinary Circumstance. 33

F. Reasonable Period of Delay ................................................................................................... 33

G. Credibility .............................................................................................................................. 33

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

MAY 6, 2013 ONE -YEAR FILING DEADLINE

Presentation

References

I. INTRODUCTION

Prior to the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”), eligibility for asylum was not linked to how

long an applicant had been in the United States. IIRIRA introduced a

new eligibility requirement: an asylum applicant filing after April 1,

1998, must apply within one year of his or her last arrival or April 1,

1997, whichever is later, unless there are changed circumstances that

materially affect his or her eligibility for asylum, or extraordinary

circumstances relating to the delay in filing. This lesson provides

guidance on determining whether an applicant has applied for asylum

within one year from date of arrival in the United States and, if not,

whether an exception exempting the applicant from this requirement

applies.

Pub. L. No. 104-208, 110

Stat. 3546 (Sept. 30, 1996).

See 8 USC § 1158(a)(2)(B);

INA § 208(a)(2)(B) (an alien

must “[demonstrate] 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”);and 8 C.F.R.

§ 208.4 (a). Exceptions to

the rule are provided in INA

§ 208(a)(2)(D) and 8 C.F.R.

§ 208.4(a).

II. OVERVIEW

Any asylum applicant who applies for asylum on or after April 1,

1998 (or April 16, 1998, for those applying affirmatively), must

establish that he or she filed for asylum within one year from the date

of last arrival (or April 1, 1997, whichever is later), or establish that

he or she is eligible for an exception to the one-year filing

requirement. If an applicant fails to establish either timely filing of

the application or that an exception applies, the application must be

referred to the Immigration Court. Only an asylum officer,

immigration judge or the Board of Immigration Appeals (BIA) is

authorized to make this determination. The determination may be

made only after an interview with an asylum officer or hearing before

an Immigration Judge.

An asylum interview is the method asylum officers use to determine

an applicant’s last arrival date, basis for asylum claim, and whether

any exceptions to the filing deadline apply. No applicant is to be

denied a full asylum interview based solely on one-year filing

deadline issues. A full and thorough asylum interview includes a pre-

interview check of country conditions and post-interview research

where necessary.

Decisions by an asylum officer must be supported by the officer’s

written assessment of the case. Because changed conditions may

provide an exception to the one-year filing requirement (as discussed

below), all referrals on the basis of the one-year filing deadline must

address pertinent country conditions and must analyze whether there

has been any change in country conditions.

8 C.F.R. § 208.4(a).

See discussion of 14-day

grace period in Section III

below for April 16, 1998

date.

Note: An applicant who is

not eligible to apply for

asylum for failure to meet

the one-year filing

requirement is still eligible

to apply for withholding of

removal before an

immigration judge.

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III. APPLICABILITY

Only affirmative applications with a filing date on or after April 16,

1998, are subject to the one-year rule. Applications with a filing date

on or before April 15, 1998, are not subject to the one-year filing

deadline as implemented by the Asylum Division. Although April 1,

1998, is the effective date provided by regulation for those who

arrived before April 1, 1997, legacy-INS extended an administrative

14-day grace period for applications filed with the INS. This 14-day

period only applies to those applications filed in the first 15 days of

April, 1998.

The Trafficking Victim’s Protection Reauthorization Act (TVPRA)

amended the INA to state that the one-year filing deadline does not

apply to unaccompanied alien children. As of the TVPRA’s effective

date of March 23, 2009, when you determine that a minor principal

applicant is an unaccompanied alien child, you should forego the one-

year filing deadline analysis and conclude that the one-year filing

deadline does not apply.

See INA § 208(a)(2)(E);

TVPRA, P.L. 110-457, §

235(d)(7)(A).

Memorandum from Joseph

E. Langlois, Chief, USCIS

Asylum Division, to Asylum

Office Staff, Implementation

of Statutory Change

Providing USCIS with Initial

Jurisdiction over Asylum

Applications Filed by

Unaccompanied Alien

Children, (HQRAIO

120/12a) (25 March 2009).

IV. DETERMINING WHETHER THE APPLICATION WAS

FILED WITHIN THE ONE-YEAR PERIOD

A. Calculating the One-Year Period

1. Date one-year period begins

The one-year period is calculated from the date of the

applicant’s last arrival in the United States or from April 1,

1997, whichever date is later. The date of arrival is

counted as day zero, so the first day in the calculation is the

day after the last arrival.

For example, if an applicant enters the United States on

February 2, 2000, leaves the United States on February 25,

2000, and returns to the United States on March 1, 2000,

the one-year period begins on March 2, 2000.

Note: The regulations, at 8 C.F.R. § 208.4(a), state that an

applicant has the burden of proving that her “application

has been filed within 1 year of the date of the alien’s arrival

in the United States,” and that “[t]he 1-year period shall be

calculated from the date of the alien’s last arrival in the

United States . . .”. Before the Ninth Circuit’s opinion in

Minasyan v. Mukasey, the Asylum Division counted the

day of arrival as “day one” for purposes of calculating the

one-year period. In order to maintain a consistent national

8 C.F.R. § 208.4(a)(2)(ii);

Matter of F-P-R, 24 I. & N.

Dec. 681 (BIA 2008)

(holding that the term “last

arrival” refers to the alien’s

most recent arrival in the

United States from a trip

abroad).

See Minasyan v. Mukasey,

553 F.3d 1224 (9th Cir.

2009) (“[T]he statute

specifically provides that the

one-year period for filing an

asylum application

commences after the date of

arrival, meaning that his date

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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approach--in accord with the INA, the regulations, and

Minasyan, the Asylum Division now calculates the day of

arrival as “day zero.”

of arrival does not count as

“day one” for purposes of

the filing deadline.” )

2. Date one-year period ends

The one-year period is calculated from the last arrival date

up to the same calendar day the following year. For

example, an applicant who arrives on February 23, 2000,

and files on February 23, 2001, will have timely filed.

Note that for an applicant who last arrived before April 1,

1997, the one-year period is calculated from April 1, 1997.

If the last day for timely filing falls on a Saturday, Sunday,

or legal holiday, filing on the next business day will be

considered timely. For example, an applicant who last

arrives on June 24, 2000, can timely file on June 25, 2001,

because June 24, 2001, is a Sunday.

8 C.F.R. § 208.4(a)(2)(ii)

See Jorgji v. Mukasey, 514

F.3d 53 (1st Cir. 2008)

(finding that the applicant

filed timely where she

entered on March 4, 2001

and provided documentary

evidence that she filed on

Monday, March 4, 2002).

3. Filing date

The filing date is found on the Service Center’s date/time

stamp on the I-589 and on the RAPS “I589” and “CSTA”

screens. If any of these dates are different, the earliest date

is to be used.

An affirmative asylum application is considered filed when

received by the USCIS Service Center. However, the

application can be considered timely if “clear and

convincing” documentary evidence demonstrates that the

application was mailed within the statutory one-year period.

The “clear and convincing” standard is explained in Section

IV.B.

8 C.F.R. § 208.4(a)(2)(ii);

see Nakimbugwe v.

Gonzales, 475 F.3d 281 (5th

Cir. 2007).

B. Burden and Standard of Proof

There are two different standards of proof that are operative in

making determinations related to the one-year filing requirement:

a) the standard of proof to establish that an applicant applied

within one year and b) the standard of proof to establish that an

exception to the requirement applies, if the applicant failed to

meet the one-year requirement. This section focuses on the

standard of proof required to establishing filing within one year.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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1. Applicant’s burden

The burden of proof is on the applicant to establish that he

or she applied for asylum within one year from the date of

last arrival in the United States.

2. Standard of proof

Pursuant to INA section 208(a)(2), the standard of proof

required to establish that an applicant filed within one year

from last arrival is the clear and convincing standard.

“Clear and convincing” is that degree of proof that will

produce a “firm belief or conviction as to the allegations

sought to be established,” and “where the truth of the facts

asserted is highly probable.”

The proof need not be “conclusive” or “unequivocal;” if put

on a scale, the clear and convincing standard would be

somewhere between the “preponderance of evidence”

standard (greater than 50% standard, or “more likely than

not”) and the “beyond a reasonable doubt” standard used in

criminal trials.

Asylum officers should avoid trying to place the clear and

convincing standard on a particular point on a percentage

scale. Clear and convincing evidence does not fall

precisely on any point between the “preponderance of

evidence” standard and the “beyond a reasonable doubt”

standard. Instead, it is the degree of evidence necessary to

create a firm belief that the asserted fact is true.

Black’s Law Dictionary, 5th

and 6th Editions; Woodby v.

INS, 385 U.S. 276 (1966);

Matter of Carrubba, 11 I&N

Dec. 914 (BIA 1966); Matter

of Patel, 19 I&N Dec. 774

(BIA 1988).

3. Establishing timely filing

An applicant may establish that an application was filed

within one year from the date of last arrival by providing

either—

a. clear and convincing evidence that the date of last

arrival was within the applicable one-year period, or

b. clear and convincing evidence that the applicant was

outside of the United States during the previous year

immediately before the date of filing.

In 2008, a Ninth Circuit decision held that, “the BIA

erred in concluding that proof of an exact departure

date was necessary when other clear and convincing

Khunaverdiants v. Mukasey,

548 F.3d 760, (9th Cir.

2008).

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evidence established . . . that [the applicant] was

released from prison in Iran less than one year before

filing his asylum application.”

4. Evidence

The evidence provided may be testimony, documentation,

or a combination of both.

a. Testimony

Testimony is evidence. Standing alone without

witness corroboration or documentary evidence, when

credible, testimony can be sufficiently clear and

convincing to lead an asylum officer to a “firm belief”

that the applicant arrived within one year before the

filing date.

8 C.F.R. § 208.13(a); Matter

of S-M-J-, 21 I&N Dec. 722

(BIA 1997); see RAIO

Training Module, Evidence.

b. Documents

Documentary evidence such as passport entries,

boarding passes, leases, etc., are probative as to when

an applicant entered the United States, when presence

outside the United States ended, and when presence in

the United States began.

While the INA requires that an asylum applicant

provide reasonably available corroborating evidence

to establish eligibility for asylum, neither the statute

nor regulations specifically address requirements for

establishing that the one-year filing requirement has

been met. However, consistent with the reasoning of

case law addressing corroboration is the premise that

corroboration should not be required when there are

reasonable explanations for the inability to provide

corroborating evidence. Due to circumstances that

give rise to a refugee’s flight, it generally would be

unreasonable to expect a refugee to have documentary

proof of presence outside the United States within a

year from last arrival. Furthermore, at least one circuit

has held that an applicant cannot be required to

provide corroborating evidence to show he or she has

met the one-year filing deadline.

Note: There may be instances in which the asserted arrival date

is uncertain or not believable. These credibility issues are

explored in Section VII.

See RAIO Training Module,

Evidence.

In Singh v. Holder, 649 F.3d

1161 (9th Cir. 2011)

(holding that the requirement

for corroborating evidence to

establish asylum eligibility

added by the REAL ID Act

of 2005 does not apply to the

statutory provision

establishing the one-year

filing deadline for asylum

applications, but not

considering whether, in the

absence of credible

testimony meeting the clear

and convincing standard, an

IJ may weigh the lack of

corroborating evidence in

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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assessing compliance with

the standard).

V. EXCEPTIONS TO THE ONE-YEAR RULE

If an applicant did not apply for asylum within one year from last

arrival in the United States, he or she may still be eligible to apply for

asylum if the applicant establishes that there are changed

circumstances materially affecting the applicant’s eligibility for

asylum or extraordinary circumstances related to the delay in filing.

Once an applicant establishes the existence of such a changed or

extraordinary circumstance, the applicant must demonstrate that the

application was filed within a reasonable amount of time given those

circumstances.

Keep in Mind:

The analysis of whether an applicant qualifies for asylum is not

relevant to examining one-year filing deadline issues; rather, the task

at this initial stage is to determine whether an exception to the one-

year filing deadline applies. If an exception to the one-year filing

deadline applies, then the applicant is entitled to a full adjudication of

his or her asylum application.

INA § 208(a)(2)(D); 8

C.F.R. § 208.4(a).

A. Changed Circumstances

1. General considerations

INA § 208(a)(2)(D).

The statute allows for an exception due to changed

circumstances that materially affect an applicant’s

eligibility for asylum. To show that the exception applies,

the applicant must establish the following:

a. the existence of a changed circumstance that occurred

on or after April 1, 1997, the effective date of the

statute;

b. that the changed circumstance is material to the

applicant’s eligibility for asylum; and

Note: An exception may

result regardless of when the

changed circumstance

occurs, so long as it occurred

after the effective date of the

statute. The changed

circumstance need not occur

during the period when filing

would be timely.

c. that the application was filed within a reasonable

period of time after the changed circumstance.

In evaluating whether a delay in filing was reasonable,

the asylum officer must take into account any delayed

awareness the applicant may have had of the changed

circumstance.

8 C.F.R. § 208.4(a)(4)(ii).

This is discussed further in

Section VI, Filing Within a

Reasonable Period of Time,

below.

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2. Types of changed circumstances

The federal regulations on filing the asylum application

provide a non-exhaustive list of the types of changed

circumstances that may provide an exception to the one-

year filing rule, as long as they materially affect the

applicant’s eligibility for asylum. These include:

a. changed conditions in the applicant’s country of

nationality or, if stateless, the applicant’s country of

last habitual residence

8 C.F.R. § 208.4(a)(4)(i)(A).

b. changes in applicable U.S. law

8 C.F.R. § 208.4(a)(4)(i)(B).

c. changes in the applicant’s circumstances, such as

recent political activism outside the country of feared

persecution, conversion from one religion to another,

etc.

8 C.F.R. § 208.4(a)(4)(i)(B).

d. the ending of the applicant’s spousal or parent-child

relationship to the principal applicant in a previous

application.

8 C.F.R. § 208.4(a)(4)(i)(C).

Examples

1) Applicant was forced by her government to undergo

an abortion. She arrives in the U.S. in 1992. The

1996 change to the refugee definition related to harm

pursuant to a coercive population control program

materially affects her asylum eligibility. She files for

asylum on April 18, 1998. This applicant is not

entitled to the changed circumstance exception

because the change did not occur on or after April 1,

1997. If no other exceptions apply, her application

will be referred.

Zhu v. Gonzales, 493 F.3d

588, 595 n.25 (5th Cir. 2007)

(rejecting Zhu’s argument

that changed circumstances

exist, given that China’s

family planning laws existed

as a basis for eligibility for

asylum when Zhu arrived in

the US).

2) Applicant is a member of the XYZ party in his

country. He is briefly jailed in September 1999. He

arrives in the U.S. in November 1999 and files for

asylum in December 2000. On the day of the

interview, XYZ members are still routinely being

jailed. Because there has been no change of country

conditions, the application will be referred provided

no other exceptions apply.

Mabasa v. Gonzales, 455

F.3d 740 (7th Cir. 2006)

(holding that applicant did

not show changed or

worsened circumstances

because the political climate

in Zimbabwe remained as

oppressive as it was at the

time of his departure, and the

applicant’s renewed political

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Note: If conditions for XYZ members worsened after

applicant departed his country, he may be eligible for

the changed circumstance exception.

In Vahora v. Holder, the Ninth Circuit further

clarified this point. Vahora had already been

subjected to serious physical harm in India because of

his religion but, after he left, conditions worsened

significantly. The country experienced the worst

religious violence in decades and the religious rioting

directly affected Vahora’s family, property, and

safety in India – his home and farm were destroyed

and his family members were pursued by the police

and went missing. Mr. Vahora did not file his

affirmative asylum application within a year of his

last arrival in the U.S. The IJ found, and the BIA

upheld, no changed circumstance, finding instead that

these events and their impact on Vahora were

insufficient to show a material effect on his eligibility

for asylum because he had already experienced

mistreatment in India and should have expected it

would continue if he returned.

The Ninth Circuit reversed, finding that there were

changed circumstances because the new facts make it

substantially more likely that Vahora’s claim will

entitle him to relief, and that such events did

materially effect his eligibility as required by 8 C.F.R.

§ 208.4(a)(4)(i)(a). Such a material effect is one that

increases in a non-trivial way the likelihood of

success in an application.

activity in the US was the

very activity that caused his

original flight); see also,

Ramadan v. Gonzales, 479

F.3d 646, 657-58 (9th Cir.

2007), rehearing and

rehearing en banc denied by,

Ramadan v. Keisler, 504

F.3d 973 (9th Cir. 2007) (no

changed circumstances

where applicant expressed

her political opinions in the

U.S. on women’s liberty in

Egypt but had already been

outspoken on women’s

issues while in Egypt).

Vahora v. Holder, 641 F.3d

1038 (9th Cir. 2011); see

also Fakhry v. Mukasey, 524

F.3d 1057 (9th Cir. 2008)

(where there are objectively

changed circumstances,

“there can be ‘changed

circumstances which

materially affect the

applicant’s eligibility for

asylum’ even if the alien

always meant to apply for

asylum and always feared

persecution; a sudden

‘Eureka!’ state of mind is not

necessary.”).

3) Applicant arrived in the U.S. in 1989 and has never

left. She was included as a derivative on her mother’s

I-589, which was filed in September 1998, while

Applicant was still a minor. Applicant’s mother died

in May 1999 before receiving her asylum interview.

In June 2000, Applicant filed her own I-589. Due to

the change in Applicant’s derivative relationship, an

exception to the filing deadline would apply provided

the asylum officer considered the delay in filing from

May 1999 to June 2000 to be a reasonable period of

time.

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Note: The fact that minors customarily leave

immigration and other legal paperwork to older family

members should be taken into account when

evaluating the reasonableness of the delay in filing.

4) Applicant was a derivative on his father’s I-589,

which was filed in January 1999. In July 2000,

Applicant got married. As a result, he lost his

eligibility for derivative status in relation to his father.

Applicant filed his own I-589 in November 2000. An

exception to the filing deadline would apply in the

son’s case, provided the asylum officer considered the

delay in filing from the date of marriage to the I-589

filing date to be a reasonable period of time.

Note: It will be rare that an asylum officer will

encounter an applicant who was a derivative on his or

her parent’s claim and who subsequently filed as a

principal because he or she is no longer under 21 years

of age. This is because under the Child Status

Protection Act, a derivative applicant continues to be

considered a child for purposes of the parent’s

pending I-589, even though the dependent turned 21

years of age.

INA § 208(b)(3) as amended

by the Child Status Protection

Act of 2002, P.L. 107-208.

See also Asylum lesson,

Guidelines for Children’s

Asylum Claims. Note:

reference to the Asylum

lesson is accurate as of this

date. At a future date, this

will reference the RAIO

training module, Children’s

Claims, Asylum Supplement.

3. Refugees sur place

The term “refugees sur place” refers to those who became

refugees after leaving their home country. The changed

circumstance exception to the one-year filing deadline

reflects the principle that some individuals become refugees

after they have left their countries and even after they may

have been residing in another country for several years

(“refugees sur place”).

Changes occurring in an applicant’s country or place of last

habitual residence, and/or activities by an applicant outside

his or her country may make the applicant a refugee sur

place. Examples include but are not limited to:

8 C.F.R. § 208.4

(a)(4)(i)(A); UNHCR

Handbook, Paragraphs 94-

95; Matter of Mogharrabi,

19 I&N Dec. 439 (BIA

1987); See RAIO Training

Module, Well-Founded

Fear, .

a. a change of government which is now hostile to an

applicant’s profession, such as journalists

b. an applicant’s involvement in political organizing or

other activities in the U.S. that are critical of the

applicant’s government

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c. an applicant’s conversion from one religion to

another, or abandonment of religion altogether recent

antagonism in an applicant’s country toward the

applicant’s race or nationality

d. recent antagonism in an applicant’s country toward the

applicant’s race or nationality

e. threats against an applicant’s family member living

abroad

Taslimi v. Holder, 590 F.3d

981 (9th Cir. 2010) (finding

that the delay between the

applicant’s conversion

ceremony and the filing of

her asylum application was

reasonable, as religious

conversion is a subjective

process that may begin on a

certain date but takes time to

incorporate into one’s life).

Example

A Russian citizen of West African ancestry has lived in the

United States since 1989. She filed an I-589 in June 2000.

Country conditions information shows that since the 1991

breakup of the former Soviet Union, individuals with West

African ancestry have been targeted by ordinary citizens in

Russia. The police have tolerated this abuse. Depending on

the particular circumstances of the case, this applicant could

be considered a refugee sur place. Provided there are no

additional exceptions, because the change in country

conditions occurred before April 1997, the applicant’s

failure to file for asylum within one year of arrival would

result in her application being referred. Note: If there had

been an escalation of violence between ethnic Russians and

West Africans after April 1, 1997, the applicant would be

eligible for an exception, provided the delay in filing is a

reasonable period of time.

See Matter of A-M-, 23 I&N

Dec. 737 (BIA 2005) (where

applicant entered the U.S. on

January 22, 2001, and filed

for asylum over 2 years later,

the nightclub bombing in

Bali, Indonesia on October

12, 2002 did not constitute a

material change in

circumstances because the

bombing did not materially

affect or advance applicant’s

claim: he was from a

different island and of a

different ethnicity and

religion than both those

generally in Bali and the

specific victims of the Bali

bombing).

B. Extraordinary Circumstances

1. General considerations

Events or factors in an applicant’s life that caused the

applicant to miss the filing deadline may except the

applicant from the requirement to file within one year of the

last arrival or April 1, 1997, whichever is later. To be

eligible for this exception, the applicant must:

8 C.F.R. § 208.4(a)(5).

a. establish the existence of an extraordinary

circumstance;

b. establish that the extraordinary circumstance was

directly related to the failure to timely file;

c. not have intentionally created the extraordinary

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circumstance, through his or her action or inaction, for

the purpose of establishing a filing-deadline

exception; and

d. file the application within a reasonable period given

the circumstances that related to the failure to timely

file.

Although an extraordinary circumstance can occur before

or after an applicant’s arrival in the U.S., and before or after

the April 1, 1997, the effective date of the statutory

provision, the extraordinary circumstance must directly

relate to an applicant’s failure to file within the one year

period when filing would be timely.

Note: Because an

extraordinary circumstance

must directly relate to the

failure to file, it must occur

in the period when filing

would be timely for an

exception to exist (in

contrast with a changed

circumstance, which may

occur at any time).

2. Types of circumstances that may be “extraordinary”

The federal regulations describe several situations that

could fall under the extraordinary circumstances exception.

This list is not exhaustive or all-inclusive. There are other

circumstances that might apply if the applicant is able to

show that those circumstances were extraordinary and

directly related to the failure to timely file.

The Asylum Division considers the examples of

extraordinary circumstances listed in the regulation as

circumstances that, if experienced by an applicant, are

likely to relate to the failure to timely file. When an

applicant establishes the existence of an enumerated

extraordinary circumstance, the officer should verify that

the extraordinary circumstance is directly related to the

failure to timely file.

Extraordinary circumstances include but are not limited to:

a. serious illness or mental or physical disability,

including any effects of persecution or violent harm

suffered in the past

8 C.F.R. § 208.4(a)(5)(i).

The illness or disability must have been present,

although not necessarily incurred, during at least part

of the one-year period after arrival.

If the applicant has suffered torture or other severe

trauma in the past, the asylum officer should elicit

information about any continuing effects from that

torture or trauma, which may be related to a delay in

Effects of persecution can

include inability to recall

details, severe lack of focus,

problems with eating and

sleeping, and other post-

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filing. Torture may result in serious illness or mental

or physical disability.

traumatic stress disorder

(PTSD) symptoms. See

RAIO training module

Interviewing - Survivors of

Torture. See also RAIO

training module Guidance

for Adjudicating Lesbian,

Gay, Bisexual and Intersex

Claims.

b. the death or serious illness or incapacity of the

applicant’s legal representative or a member of the

applicant’s immediate family.

8 C.F.R. § 208.4(a)(5)(vi).

Applicant’s legal guardian, or holder of power of

attorney, is also considered a family member.

The degree of interaction between the family

members, as well as the blood relationship between

applicant and the family member must be considered.

For example, an estranged brother with whom the

applicant has never had much contact would not

qualify, but a grandparent or uncle for whom the

applicant has sole physical responsibility would

qualify.

c. legal disability

8 C.F.R. § 208.4(a)(5)(ii).

This is best described as an incapacity for the full

enjoyment of ordinary legal rights; it includes minors

and mental impairment.

The legal disability must have existed at a point during

the one-year period after arrival.

Black’s Law Dictionary, 5

Ed.

The regulations specifically include “unaccompanied

minors” as an example of a category of asylum

applicants that is viewed as having a legal disability

that constitutes an extraordinary circumstance.

Keeping in mind that the circumstances that may

constitute an extraordinary circumstance are not

limited to the examples listed in the regulations, the

Asylum Division’s policy is to find that all minors

who have applied for asylum, whether accompanied or

unaccompanied, also have a legal disability that

constitutes an extraordinary circumstance.

The same logic underlying the legal disability ground

listed in the regulations applies to accompanied

minors: minors are generally dependent on adults for

8 C.F.R. § 208.4(a)(5)(ii);

see Matter of Y-C-, 23 I & N

Dec. 286 (BIA 2002).

A minor applicant is defined

as someone under the age of

eighteen at the time of filing.

See USCIS Memorandum,

“Updated Procedures for

Minor Principal Applicant

Claims, Including Changes

to RAPS,” Aug. 14, 2007,

p.5.

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their care and cannot be expected to navigate

adjudicatory systems in the same manner as adults.

As long as an applicant applies for asylum while still a

minor (while the legal disability is in effect), the

minor should be found to have not only established the

existence of an extraordinary circumstance, but also to

have filed within a reasonable period of time given the

circumstance, thus meriting an exception to the one-

year filing deadline.

See section VI, below,

“Reasonableness….”

(i) Unaccompanied Alien Children (UAC)

The Trafficking Victims Protection

Reauthorization Act (TVPRA) of 2008 amended

the INA to state that the one-year filing deadline

does not apply to unaccompanied alien children.

An unaccompanied alien child is a child who has

no legal guardian in the United States, or for

whom no parent or legal guardian in the United

States is available to provide care and physical

custody. As of March 23, 2009, the effective date

of the TVPRA, when an asylum officer

determines that a minor principal applicant is an

unaccompanied alien child, the asylum officer

should forego the one-year filing deadline

analysis and conclude that the one-year filing

deadline does not apply.

See INA § 208(a)(2)(E);

TVPRA, P.L. 110-457, §

235(d)(7)(A); See also

Asylum lesson, Guidelines

for Children’s Asylum

Claims. Note: reference to

the Asylum lesson is

accurate as of this date. At a

future date, this will

reference the RAIO training

module, Children’s Claims,

Asylum Supplement.

(ii) Minors Who Are Not Found To Be

Unaccompanied Alien Children

The one year filing deadline continues to be

applicable for minor principal applicants in

lawful immigration status and minor principal

applicants who are accompanied. Such cases

should be analyzed according to the general

guidance above.

Note: As passage of the

TVPRA exempts only

unaccompanied alien

children from the one-year

filing deadline, the deadline

still applies to minors who

are not found to be

unaccompanied alien

children. As a result, the

examples listed in 8 CFR §

208.4(a)(5)(ii) are still valid.

d. ineffective assistance of counsel (limited to attorneys

or accredited representatives)

8 C.F.R. § 208.4(a)(5)(iii)

The following are required for this exception:

(i) the applicant must file a written affidavit

explaining the agreement in detail and listing

what promises the attorney made or did not

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make, and

(ii) testimony or documentary evidence that the

accused counsel was informed of the allegation

and was given an opportunity to respond, and

(iii) testimony or documentary evidence that indicates

whether there has been a complaint filed with the

appropriate disciplinary authorities and, if not, an

explanation why there has been no complaint.

Note: Regulations and case law that address whether

counsel’s assistance was ineffective are not relevant

here. The asylum officer is not evaluating whether

applicant was given poor counsel; rather, the

responsibility of the asylum officer is to decide

whether the above asylum regulatory elements have

been fulfilled and that the counsel’s actions were

related to the delay in filing. Therefore, a recent

ruling of the Attorney General that an alien has no

right to effective assistance of counsel in removal

proceedings is not relevant in determining whether an

extraordinary circumstance exists and if an exception

is warranted.

8 C.F.R. § 292.3(a); Matter

of Lozada, 19 I&N Dec.

637 (BIA 1988); Matter of

B-B-, Int. Dec. #3367 (BIA

1998).

See Matter of Compean, 24

I&N Dec. 710 (AG 2009)

e. maintenance of TPS, lawful status, or parole until a

reasonable period before filing an asylum application

8 C.F.R. § 208.4(a)(5)(iv).

The regulations specifically provide that maintaining

lawful immigration status during at least part of the

one-year period qualify as an extraordinary

circumstance. Thus, maintaining lawful status may

enable an applicant to establish an exception to the

requirement to file within the one-year period. As

with all extraordinary circumstances that affect filing,

maintaining lawful status excuses the failure to file

within the one-year period so long as the application

was filed within a reasonable period given the

circumstance that relate to the failure to timely file.

The Department of Justice included these possible

extraordinary circumstances exceptions to avoid

forcing a premature application for asylum in cases in

which an individual believes circumstances in his or

her country may improve. For example, an individual

admitted as a student who expects that the political

situation in her country may soon change for the better

See 65 Fed. Reg. 76121,

76123 (Dec. 6, 2000).

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as a result of recent elections may wish to refrain from

applying for asylum until absolutely necessary.

Given the rationale for the inclusion of legal status as

an extraordinary circumstance, the Asylum Division

has determined that the “maintaining lawful status”

extraordinary circumstance will generally relate to the

failure to timely file, even where the applicant does

not reference having status as a reason for the delay in

filing.

An applicant has not “maintained lawful status” when:

(i) the admission is based on fraudulent documents,

(ii) he or she appears to be in lawful status, but has

actually violated that status, or

(iii) the term parole specifically require that asylum

be filed within one year.

Although applicants in the above circumstances have

not maintained lawful status, some still may establish

extraordinary circumstances exceptions. In evaluating

whether an exception applies, the asylum officer

should determine whether the applicant believed that

he or she was maintaining lawful status.

Note: The applicant is not

precluded from establishing

an extraordinary

circumstance where legal

status has not been

maintained. Consider if the

case involves a “delayed

awareness” of the violation

of status. See section VI.B.,

Delayed Awareness, below.

In some circumstances, where the visa allows an

applicant to be admitted to the United States for a

specific function or purpose, and the applicant never

performs that function or purpose, the applicant will

be unable to establish that he or she qualifies for an

extraordinary circumstances exception.

For example, an applicant who was admitted as an F-1

student, but never attended school (where the purpose

of the visa is to permit the applicant to attend school in

the United States) would be unable to establish that he

or she qualifies for an extraordinary circumstances

exception to filing within the one-year deadline.

On the other hand, an F-1 student may work,

mistakenly, or transfer schools without permission,

believing that this does not violate the terms of the

admission. The applicant’s belief that he or she is

maintaining F-1 status may provide for an

extraordinary circumstances exception, provided that

the applicant filed within a reasonable period of time

See section VI., Filing

Within a Reasonable Period

of Time, below.

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given the circumstances that relate to the failure to

timely file.

In evaluating whether an extraordinary circumstances

exception applies, asylum officers should keep in

mind the rationale for including “maintaining lawful

status” among the exceptions to the filing deadline

(see note above). Although not actually maintaining

status, the applicant who believes he or she is

maintaining lawful status also may delay filing for

asylum until there is no alternative.

Parole of one year or less for the purpose of

submitting an asylum application may not be

considered an exception to the one-year filing

deadline. Applicants paroled for the purpose of filing

asylum are expected to file their asylum applications

within one year of the parole and are given notice to

that effect. Therefore, unless such applicants are

granted an extension of this parole or granted some

other form of legal status, they are not eligible for the

lawful status exception to a timely filing.

Applicants who are not paroled for the purpose of

submitting an asylum application during the required

filing period may qualify for an extraordinary

circumstances exception. In such cases, applicants still

must file within a reasonable time after the period of

parole ends.

The same logic that applies for asylum applicants who

are maintaining a status or parole may apply to asylum

applicants who are derivatives on a principal’s asylum

application. For instance, where a child is a derivative

on her parent’s asylum application and the child

decides to file her own asylum application as the

principal applicant, the child’s having been a

derivative on a pending asylum application at a point

during the one-year following the child’s last entry

could constitute an extraordinary circumstance.

An alien with a pending application, who is not in any

lawful status, may be considered to be an alien whose

period of stay is authorized by the Attorney General.

The types of “stay authorized by the Attorney

General” that the asylum officer might encounter could

include pending applications for adjustment of status,

Such applicants would not be analyzed specifically

under the “lawful status” exception to the one-year

For examples of periods of

stay authorized by the

Attorney General, see

Michael Pearson, Executive

Associate Commissioner,

Field Office Operations,

Period of stay authorized by

the Attorney General after

120-day tolling period for

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filing deadline. However, insofar as the “extraordinary

circumstances” exception is not limited to the precise

scenarios outlined, the Asylum Officer should consider

the totality of the circumstances when determining

whether an applicant with a pending application can

establish an exception to the requirement that the

application be filed within one year of last arrival.

purposes of section

212(a)(9)(B) of the

Immigration and Nationality

Act (the Act).

(AD 00-07), Memorandum

to INS field offices, March

3, 2000.

f. initial attempted submission of application was timely

(i) defect in first submission

8 C.F.R. § 208.4(a)(5)(v).

The I-589 was mailed within one year of the last

arrival, but the USCIS Service Center returned it

as improperly filed. It was subsequently refiled

more than one year after the arrival. In cases

such as this, the applicant is presumed to have

attempted a timely request for protection with

USCIS. The application will not be referred on

the basis of the one-year filing deadline, provided

the applicant refiles within a reasonable period of

time from the date the application was returned

by the Service Center. Note: The file must

always be thoroughly checked to ensure that

correspondence to an applicant from the Service

Center is not overlooked.

(ii) administrative closure

Where a case was initially filed before April 16,

1998 or prior to the expiration of the one-year

period, then closed and subsequently reopened

by USCIS, there is no filing deadline issue

because the application was timely filed.

(iii) previous asylum case was terminated by an

immigration judge

Provided the first filing was before April 16,

1998, or before the expiration of the one-year

period, an asylum officer should examine the

period of time from the termination date to the

second filing date in order to determine whether

the delay was reasonable.

g. other circumstances

Other circumstances that are not specifically listed in

See also RAIO training

module Guidance for

Adjudicating Lesbian, Gay,

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the non-exclusive list in the regulations, but which

may constitute extraordinary circumstances,

depending on the facts of the case, include, but are not

limited to, severe family or spousal opposition,

extreme isolation within a community, profound

language barriers, or profound difficulties in cultural

acclimatization. Any such factor or group of factors

must have had a severe enough impact on the

applicant’s functioning to have produced a significant

barrier to timely filing.

Bisexual and Intersex

Claims.

C. Burden and Standard of Proof

1. Applicant’s burden

The burden of proof is on the applicant to establish the

existence of a changed circumstance materially affecting

eligibility for asylum or of an extraordinary circumstance

related to the applicant’s failure to apply for asylum within

one year from the last arrival.

2. Standard of proof

The standard of proof to establish changed or extraordinary

circumstances is proof to the satisfaction of the Attorney

General. This is a lower standard of proof than the “clear

and convincing” standard that is required to establish that

the applicant timely filed.

INA § 208(a)(2)(D); see

RAIO Training Module,

Evidence.

The standard “to the satisfaction of the Attorney General”

places the burden on the applicant to demonstrate that an

exception applies. The applicant is not required to establish

“beyond a reasonable doubt” or by “clear and convincing

evidence” that the exception applies. Rather, this standard

has been described in another immigration context as

requiring the applicant to demonstrate that the exception

applies through “credible evidence sufficiently persuasive

to satisfy the Attorney General in the exercise of his

reasonable judgment, considering the proof fairly and

impartially.”

See Matter of Barreiro, 12

I&N Dec. 277, 282 (BIA

1967) (interpreting the

“satisfaction of the Attorney

General” standard as applied

when adjudicating an

exception to deportability for

failure to notify the Service

of a change of address).

This standard has also been interpreted in other

immigration contexts to require a similar showing as the

“preponderance of evidence” standard, requiring an

individual to prove an issue:

 “by a preponderance of evidence which is reasonable,

substantial and probative,” or

See e.g. Matter of Barreiros,

10 I&N Dec. 536, 538 (BIA

1964) (interpreting same

standard for rescinding LPR

status by establishing that

applicant was not eligible for

adjustment); Matter of V-, 7

I&N Dec. 460, 463 (BIA

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 “in his favor, just more than an even balance of the

evidence.”

1957) (interpreting standard

for an alien to establish that

a marriage was not

contracted for the purpose of

evading immigration laws).

3. Evidence

Generally, asylum officers must consult country conditions

information relevant to the applicant’s claim to determine

whether there are changed country conditions material to

the applicant’s eligibility for asylum.

Note: This, of course, would

not apply where the changed

circumstance is a change in

the applicant’s spousal or

parent-child relationship to

the principal in a previous

application.

While the burden of proof is on the applicant to show that

there are changed circumstances that now materially affect

his or her eligibility for asylum, many applicants affected

by changed circumstances may not be able to articulate

those circumstances. The unique nature of assessing an

applicant’s need of protection places the officer in a

“cooperative” role with the applicant. It is an asylum

officer’s affirmative duty “to elicit all relevant and useful

information bearing on the applicant’s eligibility for

asylum.”

See RAIO Training Module,

Researching and Using

Country of Origin

Information in RAIO

Adjudications.

UNHCR Handbook, para.

196; 8 C.F.R. § 208.9(b). .

Asylum officers must be flexible and inclusive in

examining changed or extraordinary circumstances, if

credible testimony or documentary evidence relating to an

exception exists. Documentary evidence includes country

conditions and legal information that the asylum officer

researches and uses.

INS, Interim Rule with

Request for Comments, 62

Fed. Reg. 10312, 10316

(Mar. 6, 1997)

(acknowledging the weight

of “a decision to deny an

alien the right to apply for

asylum”); 142 Cong. Rec.

S11840 (Sept. 30, 1996)

(comments by Senators

Hatch and Abraham shortly

before passage of IIRIRA

that indicate legislative

intent for exceptions to cover

a broad range of

circumstances).

VI. FILING WITHIN A REASONABLE PERIOD OF TIME

A. Overview

If there are changed or extraordinary circumstances either

material to the applicant’s claim or related to the applicant’s

failure to file timely, respectively, the applicant must have filed

the asylum application within a reasonable period of time from

the occurrence of the changed or extraordinary circumstance in

order to establish an exception to the one-year filing deadline.

8 C.F.R. § 208.4(a)(4)(ii).

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B. Delayed awareness

If the applicant can establish that he or she did not become

aware of the changed circumstances until after they occurred,

such delayed awareness must be taken into account in

determining what constitutes a “reasonable period of time.”

8 C.F.R. § 208.4(a)(4)(ii).

C. Evaluation of the “reasonable period of time”

What constitutes a reasonable period of time to file following a

changed or extraordinary circumstance depends upon the facts of

the case. There is no amount of time that is automatically

considered reasonable or unreasonable. Asylum officers must

ask themselves if a reasonable person under the same or similar

circumstances as the applicant would have filed sooner. Asylum

officers are encouraged to give applicants the benefit of the

doubt in evaluating what constitutes a reasonable time in which

to file. An applicant’s education and level of sophistication, the

amount of time it takes to obtain legal assistance, any effects of

persecution and/or illness, when the applicant became aware of

the changed circumstance, and any other relevant factors should

be considered.

In addition, the applicant may assert that a particular situation

that would otherwise be considered “an extraordinary

circumstance,” such as a serious injury to the applicant and/or

his or her representative, that took place outside of the one year

filing period contributed to his or her delay in filing. Though

such situations cannot be considered “extraordinary

circumstances” for the purposes of an exception, they should be

considered when determining whether the application was filed

in a reasonable period of time where there has been a changed or

extraordinary circumstance identified that could give rise to an

exception.

Asylum Procedures, 65 Fed.

Reg. 76121, 16123-24 (Dec.

6. 2000) (Supplementary

Information) (noting that the

finding of changed or

extraordinary circumstances

would justify late filing “to

the extent necessary to allow

the alien a reasonable

amount of time to submit the

application,” but not

providing an automatic

extension of a certain period

of time); see Matter of T-M-

H- & S-W-C-, 25 I&N Dec.

193 (BIA 2010) (finding that

there is no automatic one

year extension in which to

file an asylum application

following material “changed

circumstances”)

Examples

1) An educated human rights lawyer arrived in the U.S. in

1985. She demonstrates that country conditions changed

in 1997, placing her at risk. She files for asylum in January

2001. Due to this particular applicant’s knowledge of the

law and human rights conditions, an explanation for

waiting so long to file would have to be very convincing to

be considered reasonable.

2) In 1987 a Polish citizen was jailed by the Polish

Government for one year for expressing a pro-democracy

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political opinion. He arrived in the U.S. in 1988. He filed

for asylum in September 2000. His attorney states that an

I-589 was not filed for many years because she did not

believe he was eligible. She believes that a BIA case

decided in May 2000 affects his eligibility. Presuming his

attorney is correct, a changed circumstance exception to the

filing deadline rule – change in applicable U.S. law –

applies, provided that the four-month period from May to

September is considered a reasonable delay.

3) Applicant was seriously ill during a one-year period after

her last arrival, but was in very good health for 18 months

prior to filing her asylum application. When asked why she

waited so long, she replied that she was too busy repairing

her home. While this applicant’s illness constituted an

extraordinary circumstance for not timely filing the I-589,

delaying the filing as long as she did was not reasonable.

Such a delay might, depending on the circumstances, be

considered reasonable for an applicant who continued to

require intensive therapy and other treatment as a result of

the illness.

Examples related to permission to remain in the U.S. (“status

cases”)

When it is determined that an application was untimely filed and

that during the one-year period the applicant had TPS, parole, or

a lawful status, the inquiry is whether the applicant filed for

asylum within a reasonable period of time after the TPS, parole,

or lawful status ended. The existence of an extraordinary

circumstance in the form of a legal status does not toll the one-

year limitation. The determinations of reasonableness are made

on a case-by-case basis. Although the totality of circumstances

in the case determines what is considered a reasonable period of

time, guidance offered by the Department of Justice states that

more than a six-month delay would usually be considered

unreasonable.

Husyev v. Mukasey, 528

F.3d 1172 (9th

Cir. 2008)

(Court found that Husyev’s

filing 364 days after his

lawful status expired was

unreasonable even though

the filing was six months

after the one-year deadline

had passed.); see Asylum

Procedures, 65 Fed. Reg.

76121, 76123-24 (Dec. 6,

2000) (Supplementary

Information) (“Clearly,

waiting six months or longer

after expiration or

termination of status would

not be considered

reasonable.”).

1) In February 1999, Applicant was admitted on a B-2 visa

until August 1999. She applied for asylum untimely in

June 2000. An extraordinary circumstance exception

applies because Applicant was in lawful status during the

one-year filing period. The issue before the asylum officer

See Asylum Procedures, 65

Fed. Reg. 76121, 76123

(Dec. 6, 2000)

(Supplementary

Information) (“The

Department would expect a

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is whether ten months between the expiration of lawful

status (August 1999) and the time of filing (June 2000) is a

reasonable period of time to file. The asylum officer does

NOT look to the period of time between when the

application should have been filed (February 2000) and

when it was actually filed (June 2000).

person in that situation to

apply for asylum, should

conditions not improve,

within a very short period of

time after the expiration of

her status. Failure to apply

within a reasonable time

after expiration of the status

would foreclose the person

from meeting the statutory

filing requirements.”).

2) In September 1998, Applicant entered the U.S. on a student

visa. Her status lapsed in June 2000. She filed for asylum

in August 2000. Because the I-589 was filed more than one

year after the last arrival, the issue for the asylum officer is

whether it was reasonable to delay filing for two months

after the applicant’s lawful status lapsed. Note: Barring

facts to the contrary, in this situation a two-month delay

would ordinarily be considered a reasonable period of time.

A longer period of time may also be reasonable, depending

on the circumstances.

3) In March 1999, Applicant was admitted to the U.S. on a B-

1 visa and authorized to stay until June 1999. She applied

for asylum in February 2000. This applicant timely filed

the application within one year of her last arrival, so there

is no filing deadline issue to adjudicate; whether it was

reasonable to delay filing for eight months from the visa

expiration is irrelevant. Applicant has met the one-year

filing requirement.

VII. CREDIBILITY

A. Overview

As explained in this lesson, an applicant must demonstrate by

clear and convincing evidence that he or she applied for asylum

within one year after the date of last arrival. This may be

demonstrated either by establishing the date of last arrival or by

establishing that the applicant was outside the United States less

than one year prior to the date the application was filed. If the

applicant fails to file within one year from the date of last

arrival, the applicant may still be eligible to apply for asylum if

the applicant establishes to the satisfaction of the asylum officer

that an exception applies. To determine whether the applicant

met the filing deadline or whether an exception applies, the

asylum officer will have to evaluate the credibility of the

applicant’s testimony regarding each of these issues.

B. Totality of the Circumstances

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In making the determination as to an asylum applicant’s

credibility, including the credibility of testimony related to the

elements of the one-year filing deadline, asylum officers should

consider “the totality of the circumstances, and all relevant

factors.” As noted in the Congressional conference report issued

in conjunction with the enactment of the REAL ID Act of 2005,

the credibility “determination must be reasonable and take into

consideration the individual circumstances of the specific

witness and/or applicant.”

INA § 208 (b)(1)(B)(iii); see

RAIO Training Module,

Credibility.

H.R. Rep No.. 109-72, at

167 (2005).

Note: The standard for evaluating the applicant’s credibility

should be distinguished from the standards of proof by which the

applicant must establish the requirements of the one-year filing

deadline. For example, to determine whether an applicant has

established that he or she timely filed the application, the asylum

officer will evaluate whether, in the totality of the circumstances,

the applicant can be considered credible as to the facts related to

his or her date of entry and filing of the application and, if

credible, whether the testimony establishes by “clear and

convincing evidence” that the application was filed timely. To

determine whether an applicant has established that he or she has

satisfied the requirements of an exception, first, the asylum

officer will evaluate whether, in the totality of the circumstances,

the applicant’s testimony related to the existence of an changed

or extraordinary circumstance is credible and, if so, whether the

testimony establishes to the “satisfaction of the adjudicator” that

a changed or extraordinary circumstance exists. Then the

asylum officer will evaluate whether, in the totality of the

circumstances, the applicant’s testimony regarding the

circumstances surrounding the delay in filing is credible and, if

so, whether the testimony supports a finding that the applicant

was filed in a reasonable amount of time given the

circumstances.

There may be instances where an applicant presents persuasive

testimony as to one aspect of his or her claim, but does not

present persuasive testimony as to another aspect. In evaluating

whether an applicant was credible, asylum officers should

evaluate the credibility of each factual issue, and then make a

decision reviewing all relevant factors and the totality of the

circumstances. Facts bearing on the filing deadline

determination that should be evaluated for credibility include,

but are not limited to, the details of the arrival, the applicant’s

whereabouts during the one year prior to the date of filing, the

existence of changed or extraordinary circumstances, and the

reason presented for any delay in filing if a changed or

extraordinary circumstance is established. The testimony and

See Kadia v. Gonzales, 501

F.3d 817, 821-22 (7th Cir.

2007) (rejecting the doctrine

of falsus in uno, falsus in

omnibus - false in one thing,

false in all things – for

asylum credibility

determinations).

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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other relevant factors should be evaluated based on the totality of

the circumstances to determine whether the applicant has

credibly established the facts related to the elements of the one-

year filing deadline rule.

Example

Applicant credibly testifies that she is a member of a

minority religious group. She cannot credibly establish her

last arrival date or when she was last outside the United

States. She claimed that she was jailed because of her

religion, but presents inconsistent testimony concerning

important details about her arrest and prolonged jail

sentence. Country conditions information establishes that

there recently has been a significant escalation of violence

against the applicant’s religious group in her country.

Although this applicant’s claims regarding her last arrival

and prior religious persecution are found not credible, she

does credibly establish she is a member of a religious

minority that recently has been targeted.

Considering the totality of the circumstances, the facts

related to the applicant’s date of entry are found not

credible, and thus she has not established by clear and

convincing evidence that she timely filed her application.

Considering the totality of the circumstances, the facts

related to an exception to the one-year filing deadline – the

applicant’s membership in the targeted religious minority

and the recent change in conditions in the applicant’s

country – are found credible. Therefore, the applicant may

establish that an exception to the one-year filing deadline

applies and she is eligible to apply for asylum, assuming

she filed within a reasonable period of time from the

changed circumstance. The asylum officer would then

analyze and make a decision on the merits of the asylum

claim.

a. last arrival

There should always be an inquiry concerning an

applicant’s manner, place and time of last arrival. If

satisfactory arrival documents are not available,

follow-up questions should be asked and the

credibility of the applicant’s responses evaluated.

If the applicant cannot credibly establish the date of

last arrival or cannot remember the date of last arrival,

the asylum officer should inquire into whether the

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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applicant was outside the United States at any time

during the 12 months before the filing date. In such

cases, the applicant’s whereabouts during the 12

months before the filing date becomes relevant.

Examples

1) Applicant does not provide credible testimony on

her manner, place, or time of last arrival.

Applicant does, however, provide credible

documentary and/or credible testimonial

evidence of being in Taiwan seven months

before the filing date. Because applicant credibly

testified that she was in Taiwan seven months

before filing for asylum and therefore must have

last entered the United States less than 12

months before the filing date, she has satisfied

her evidentiary burden of proving with clear and

convincing evidence that the application was

filed within one year of her last arrival.

Note #1: Asylum officers should not assume that

the absence of detailed and consistent testimony

regarding the specifics of an applicant’s arrival

indicate an attempt to circumvent the filing

deadline requirements. There may be other

reasons an applicant fails to provide details about

his or her arrival, such as the desire to protect the

identity of the person whose passport an

applicant used, language confusion, fear of

smugglers, or the natural fading of memory over

time. The asylum officer should inquire into the

reasons an applicant fails to provide detailed

information about his or her arrival and carefully

consider the response based on the totality of the

circumstances. If an applicant presents vague or

inconsistent testimony about the date, manner,

and place of last entry, the applicant may

nonetheless be able to establish by clear and

convincing evidence that he or she was outside

the United States less than one year prior to the

filing date and thus met the one-year filing

requirement.

Note #2: Information pertaining to an applicant’s

whereabouts prior to 12 months before the filing

date may be relevant to the last arrival date, but

only if it indicates the applicant was present in

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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the United States. To illustrate, if the I-589 is

filed in December 2000, information indicating

that the applicant was in the United States before

December 1999 without having left the United

States and returned could be relevant, because it

may be probative of whether the applicant was in

the United States for more than a year before

applying for asylum. On the other hand,

information relating to an applicant’s presence

outside the United States before December 1999

generally would not be relevant.

2) Applicant files an I-589 in December 2000. He

testifies that in February 2000 he moved from

New York to Detroit. Three months later he

moved to Miami, and four months after that he

moved to Los Angeles. He testifies that during

these months he installed billboards for a living.

Upon further questioning, the asylum officer

concludes that the applicant’s testimony about

the different places he claims to have resided

during those months is not credible. The

applicant also does not know anything about the

billboard business. This testimony should be

evaluated under the totality of the circumstances

to determine whether the applicant’s claim as to

his employment is credible. Though the

applicant may be found not credible as to his

claimed work as a billboard installer in those

specific cities, this information alone is

insufficient to find that he has not established by

clear and convincing evidence that he filed

within one year of his last arrival, as the

information is not related to whether the

applicant was in the United States for more than

12 months before the filing date.

3) Applicant files an I-589 in September 2000. His

testimonial and documentary evidence on being

in a refugee camp from 1993 to 1998 is not

credible. The evidence concerning 1993 to 1998

is not related to whether the applicant was in the

United States for more than 12 months before the

filing date, and does not cast doubt on a last

arrival date. Therefore, it is not relevant and

cannot be the basis upon which the application is

referred. For this 1995 to1998 period, facts

relating to a United States residence would be

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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relevant to the timeliness determination.

b. changed circumstances

Whenever a filing is untimely, asylum officers must

explore reasons that may have caused a late filing,

such as changes in the law, country conditions, the

applicant’s personal circumstances, or other areas that

materially affect the applicant’s asylum eligibility,

and evaluate the credibility of the applicant’s

testimony regarding these reasons under the totality of

the circumstances. Information directly related to the

existence of a changed circumstance is relevant to the

determination of whether the applicant is eligible for

an exception to the filing requirement.

Example: Applicant claims that her sister recently

published in a newspaper in Applicant’s country an

article that was highly critical of the government.

Family members remaining in her country have been

threatened by the government as a result. Facts

related to whether the article was published by the

applicant’s sister and whether publication of such an

article could affect the applicant’s eligibility for

asylum are relevant to whether the applicant

established the existence of a changed circumstance

for the purposes of the one-year filing deadline.

Reminder: In evaluating the credibility of the

presented changed circumstance, the asylum officer

should not be making a determination on whether the

applicant is eligible for asylum, only whether the

applicant is eligible to apply for asylum.

c. extraordinary circumstances

Whenever a filing is untimely, asylum officers must

explore events or factors in the applicant’s life that

may have caused a late filing. Information directly

related to the existence of an extraordinary

circumstance is relevant to the determination of

whether the applicant has established the existence of

an extraordinary circumstance for the purposes of the

one-year filing deadline.

Example: Applicant claimed that she was in a

serious car accident, which caused her to miss the

one-year filing deadline. Facts relating to whether the

accident occurred and the extent of Applicant’s

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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injuries are relevant to the determination of whether

Applicant established the existence of an

extraordinary circumstance.

Example: The applicant, a transgender male from

Honduras, suffered severe and continuous sexual and

other physical abuse for many years, as well as

familial and societal discrimination and ostracism on

account of his sexual orientation. He last entered the

U.S. in 2003 but did not file for asylum until 2009.

The applicant credibly explained that he felt isolated

and was afraid to come forward sooner because he

was ashamed and fearful of ostracism by friends and

colleagues and society in general. According to

medical reports he submitted, he suffered from PTSD

as a result of the years of trauma he suffered in

Honduras. His PTSD can be seen as an extraordinary

circumstance related to the delay in filing during the

year after he arrived; the 5-year delay afterwards may

also be considered reasonable based on that medical

condition.

See RAIO training module,

Guidance for Adjudicating

Lesbian, Gay, Bisexual and

Intersex Claims.

d. delay in filing

An applicant’s explanation of the circumstances

surrounding the delay in filing is relevant to the issue

of whether the applicant established that the

application was filed in a reasonable period of time

after the changed or extraordinary circumstance and

thus established an exception to the filing

requirement. Asylum officers should inquire into the

reason for the delay when the delay appears

unreasonable on its face.

For example, if an applicant filed for asylum within a

few months after recovering from a serious illness that

directly related to the failure to timely file, the delay

would appear reasonable on its face. The asylum

officer would not need to inquire into why it took the

applicant two months to apply. However, if the

applicant waited eight months after recovering from

the illness, the asylum officer should inquire into the

reason for the delay and evaluate the credibility of the

explanation provided.

Example: A citizen of Bulgaria arrives in the U.S. in

1989 and files for asylum in January 2001. She is

very well educated, fluent in English and not

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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represented by an attorney. The asylum officer knows

that a widely-publicized change in U.S. law in 1998

may help Applicant’s asylum case. When asked why

the application was not filed sooner, the applicant

testified that until late in 2000, she did not know about

the change in the law or even that asylum existed.

This change in law, which affects the applicant’s

eligibility, is a changed circumstance. The officer

would need to evaluate the credibility of the

applicant’s explanation of delayed awareness of the

change in the law to determine whether the delay in

filing was reasonable.

VIII. SUMMARY

A. Filing Deadline Requirement

Any asylum applicant who applied for asylum on or after April

1, 1998 (or April 16, 1998, for those applying affirmatively),

must establish that he or she filed for asylum within one year

from the date of last arrival or that he or she is eligible for an

exception to the one-year filing requirement.

B. Calculating the One-Year Period

The one-year period is calculated from the last arrival date (“day

zero”) up to the same calendar day the following year. If the last

day for timely filing falls on a Saturday, Sunday, or legal

holiday, filing on the next business day will be considered

timely.

C. Burden and Standard of Proof for One-Year Period

The burden of proof is on the applicant to establish by clear and

convincing evidence that the application was filed within one

year from the date of the applicant’s last arrival in the United

States. The burden may be met by presentation of credible

testimony, documentation, or a combination of both.

D. Exceptions—Changed or Extraordinary Circumstances

If an applicant did not apply for asylum within one year from

last arrival in the United States, he or she may still be eligible to

apply for asylum if the applicant establishes either the existence

of changed circumstances that materially affect the applicant’s

eligibility for asylum or extraordinary circumstances related to

the delay in filing and that the application was filed in a

reasonable period of time given the circumstances.

US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO ASYLUM DIVISION OFFICER TRAINING COURSE

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E. Standard and Burden of Proof for Establishing a Changed

or Extraordinary Circumstance

The burden of proof is on the applicant to establish to the

satisfaction of the asylum officer that a changed or extraordinary

circumstance exists.

F. Reasonable Period of Delay

Once an applicant establishes the existence of a changed or

extraordinary circumstance, the applicant bears the burden to

demonstrate that the application was filed within a reasonable

amount of time given those circumstances. If the applicant can

establish that he or she did not become aware of a changed

circumstance until after it occurred, such delayed awareness

must be taken into account in determining what constitutes a

“reasonable period.”

G. Credibility

Asylum officers must consider whether the applicant’s testimony

related to the one-year filing deadline is credible in the totality of

circumstances. Facts bearing on the filing deadline adjudication

that should be evaluated for credibility include the details of the

arrival, the applicant’s whereabouts before the filing date, the

existence of changed or extraordinary circumstances, and the

reason presented for any delay in filing if a changed or

extraordinary circumstance is established. Credible testimony

related to these facts should be evaluated to determine whether

the applicant has established, according to the appropriate

standard of proof, each element of the one-year filing deadline.