Thursday, September 15, 2016

Immigration Article of the Day: The One-Year Bar to Asylum in the Age of the Immigration Court Backlog by Lindsay Muir Harris

The One-Year Bar to Asylum in the Age of the Immigration Court Backlog by Lindsay Muir Harris, Immigration and Human Rights Clinic September 1, 2016

Abstract: This article addresses the disastrous interplay between the overburdened immigration court system and the one-year deadline to apply for asylum for individuals fleeing persecution and seeking protection in the United States. Currently, 277 immigration judges nationwide are tasked with the adjudication of over 500,000 immigration cases. The number of individuals seeking asylum protection is at a record high. A humanitarian crisis in the Central American countries of Guatemala, Honduras, and El Salvador has resulted in unprecedented numbers of unaccompanied children and families seeking protection in the U.S. Any failure by these asylum seekers to file their applications within one year of arrival, as required by a two-decade-old law aimed at addressing asylum fraud, often results in an outright bar to asylum.

The majority of these children and families are apprehended and detained at or close to the U.S.-Mexico border. Upon encountering these individuals and families, U.S. Department of Homeland Security (DHS) places many of them into fast-track removal processes. If an individual states that she has a fear of returning to her home country, she is entitled to undergo a credible fear interview with an asylum officer from the U.S. Citizenship and Immigration Services (CIS). During this credible fear interview, an asylum seeker must establish a significant possibility that he or she will establish eligibility for asylum. Often, she must do so without an attorney because immigrants do not have a right to a government-appointed attorney in immigration proceedings, although they may hire one at their own cost or through pro bono services.

Even after establishing this initial threshold eligibility for asylum, individuals who receive a positive determination after a credible fear interview are still required to file an application in open court, before an immigration judge. If an asylum seeker fails to file for asylum within one year of her arrival, she is barred from asylum unless she can establish extraordinary or changed circumstances to excuse her untimely filing.

Current immigration court backlogs render timely filing of applications for asylum in open court virtually impossible, as court dates are seldom scheduled within one year of an asylum seeker’s arrival in the U.S. This is particularly prejudicial for unrepresented (pro se) applicants, who lack an attorney to navigate the cumbersome and technical process of filing of an asylum application within one year absent scheduled hearing. In a tragic twist of form over substance, worthy asylum seekers are denied the protection asylum provides due to a technicality beyond their control. While scholarly critiques of the one-year deadline itself abound, the unanticipated effect of the immigration court backlog remains unexplored. Using accounts of contemporary cases, this article is the first to illuminate the human costs of this twenty-year-old misguided law in this age of unprecedented immigration court backlogs: the deprivation of rights and full protection for vulnerable children and families seeking protection in the U.S. This disaster in the making is as avoidable as it is unjust, and the article presents road maps for each actor in the immigration system to prevent serious consequences for asylum seekers.

Part I offers a brief overview of the asylum system in the U.S. Part II examines of the one-year bar to asylum in depth, including the impetus for its creation twenty years ago, critiques of the bar, and the process for establishing that an asylum application was timely filed. Part III surveys the current state of our overwhelmed immigration court system. Part IV offers two case studies of asylum seekers barred from asylum by the interplay of the backlog and the one-year bar. Part V evaluates current efforts to challenge the effects of the one-year bar and the backlogs through litigation, along with the creative and burdensome measures attorneys may take to preserve the one-year filing deadline. Finally, Part VI proposes a range of potential solutions to this mounting crisis, identifying actions within reach of each actor in the immigration system to avert this mounting crisis. Part VI ultimately argues that Executive Office of Immigration Review and USCIS must undertake administrative and regulatory reforms to ensure that all asylum seekers, whether represented by counsel or pro se, have an opportunity to meet the one-year filing deadline.


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