Key Deadlines (and Tips to Avoid Them) in Asylum Cases
The application must be received at Immigration within one-year of the foreign national’s arrival. There are, however, important exceptions and reasons for delays in filing.
IntroductionIf the case is denied and the applicant has another status, such as being a student, the process ends there. However, if the case is denied and she has no legal status in the United States, she will be referred to an Immigration Judge. This poses a dilemma for those persons who REALLY fear returning to their home countries. She must file for asylum within one year of arriving, knowing that if she does not win, she will face removal from the United States.
Proof is Needed to File Within One-Year DeadlineForeigners must file an asylum application within one year of their last arrival in the United States. This presents a challenge for foreigners who find it difficult to obtain all the documents needed to support their case, especially when some of that evidence must be released by foreign authorities such as the police. The instructions, however, request that the applicant mail the proof together with the application.
Due to backlogs at both Asylum Offices and Immigration Courts, foreign nationals have time to gather ADDITIONAL evidence.
Filing After the One-Year Deadline, including Children and Motions to ReopenForeigners who file for asylum at Immigration Court often file after the deadline. Attorneys are needed at Immigration Court because cases involve more than filing an application. Sometimes it is necessary to prepare Motions asking the Immigration Judge to decide the case according to certain laws or regulations. There are specific ways to prepare these Motions and, of course, only lawyers know how to analyze the law in the way that will give the client the greatest chance of winning.
The filing deadline may be waived if applicants can show either changed circumstances that affect their eligibility for asylum or extraordinary circumstances relating to the delay in filing. The following examples have been successful: serious illness of the foreigner, death or serious illness of a member of the foreigner's immediate family, and hiring another attorney whose services were useless.
Children can file asylum any time before turning 18 years of age. There is nothing more heart-wrenching in practicing immigration law than watching children try to represent themselves in Immigration Court. Children should never do it alone. When choosing an attorney, they should look for someone experienced in representing their special needs.
Experienced attorneys will use information that applies only to children. For example, the United Nations issued a report describing the dangers that unaccompanied minors face when traveling to the United States. The report "Children on the Run" is a chilling account of the dangers these children face in their home countries, namely being forced into a gang or becoming victim of murder.
Motions to Reopen give those who have been ordered removed (deported) a second chance to stay legally in the U.S. A Motion is an attorney's written argument as to why the foreigner should win.
A typical Motion to Reopen requires that the foreign national file the motion within 90 days of the Immigration Judge's decision. During that time, the foreign nationals may also file for a stay of removal, which if approved, allows them to stay in the United States while the motion to reopen is pending.
Filing After the One-Year Deadline, including Problems with Former LawyerApplicants may also file the applications after the one-year deadline if there has been ineffective assistance by a prior lawyer. This is also true if the applicant filed before and was denied.
A denial of a case does not give rise, in and of itself, to a valid claim for ineffective assistance of counsel. Importantly, applicants must show that the prior attorney's actions prohibited them from being able to present their case within the one year. She must show that she was prejudiced by the other attorney's actions.
To be successful in filing a late case based on ineffective assistance of counsel, applicants must comply with the requirements set out in Matter of Lozada.
Failure to file asylum applications within one year of an applicants' last arrival in the United States, failure to file within a reasonable time after changed circumstances, and (sometimes) admitting that criminal convictions made their clients removable from the United States have been found to be instances where an attorney has provided ineffective assistance to their client.
Deadline for BenefitsForeigners are often anxious to start working so that they can support themselves and their family. The "asylum clock," as it is commonly called, starts ticking when a complete asylum application is filed with the Citizenship and Immigration Service or in front of the Immigration Judge. Applicants can file an employment authorization application 150 days after filing for asylum. Immigration, however, may not provide a work permit until 180 days have passed. In order to avoid fraudulent applications filed for the purpose of work permits, if the asylum is denied, the applicant is not eligible for work authorization.
In Immigration Court, the asylum clock is "frozen" when the delay is caused by the foreign national. For example, when a person asks the Immigration Judge for additional time to hire an attorney, the asylum clock is stopped. Until the next hearing, the 150 days needed for the work permit are NOT being counted.
Asylees may file for residency ONE year after the date of approval. They will need to submit proof of the asylum approval, which would be either the approval letter from Citizenship and Immigration Services or the Immigration Judge's order. When obstacles prohibit foreign nationals from obtaining legal permanent residence, they maintain their asylee status. Examples of such obstacles include past arrests and convictions, even in their homelands.
Asylees may petition for their spouse or children under 21 years of age who are outside of the country. The foreigner can file this application immediately after approval, but it must be filed within TWO YEARS of the asylum approval. Filing an asylee family petition is a two-step process. First, the asylee must file the petition with the U.S. Citizen and Immigration Services. Once the U.S. Citizen and Immigration Services agency approves this petition, the approval notice is transferred to the embassy or consulate where the relative will be going for an interview. The embassy will contact your attorney regarding which forms and documents are needed for the interview. If approved, your family member will receive permission to travel the United States.