Challenging Obstacles to Meeting The One Year Filing Deadline for Filing An Asylum Application

Challenging Obstacles to Meeting The One Year Filing Deadline for Filing An Asylum Application

Mendez-Rojas v. Johnson, No. 2:16-cv-01024-RSM (W.D. Wash. Filed June 30, 2016)

STATUS:
Pending

On June 30, 2016 the American Immigration Council, along with the Northwest Immigrant Rights Project, the National Immigration Project of the National Lawyers Guild, and Dobrin & Han, PC, filed a class action lawsuit against the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (the immigration courts). This lawsuit challenges obstacles faced by asylum-seekers in satisfying the statutory requirement that they apply for asylum within one year of entering the United States. Asylum-seekers who miss this deadline may be denied asylum. Unfortunately, due to government policies and practices beyond their control, meeting this deadline is difficult for some and impossible for others.

Plaintiffs in this suit—four asylum-seekers who face barriers to timely filing their asylum applications—seek to represent a nationwide class of similarly situated asylum-seekers. Plaintiffs challenge DHS’s failure to advise them of the deadline for filing their asylum applications, as well as the both DHS’s and the immigration courts’ failure to adopt procedures which would ensure that an individual is able to file an asylum application by the deadline.  Even those asylum-seekers who learn about the one year filing deadline in time to meet it face serious obstacles in complying with the law. At the time that the suit was filed, the immigration courts required all applications to be filed before an immigration judge in open court.  However, due to increasingly backlogged immigration courts, asylum-seekers often did not have their first day in court until after the one year filing deadline had already passed. Others find themselves stuck in limbo between USCIS and the immigration courts, with both agencies refusing to accept the application.

After the lawsuit and a motion for class certification were filed in this case, the immigration courts rescinded the policy which required asylum applications to be filed only in open court. Its new policy allows an asylum applicant to file the application at a court window at any time. This new policy—while a step in the right direction—does not resolve all issues in the lawsuit. 

In early December 2016, the government filed a brief opposing class certification. Plaintiffs filed a reply brief on December 21, 2015. In January 10, 2017, the District Court granted Plaintiffs’ motion and certified a nationwide class as Plaintiffs had requested.  The newly certified classes—consisting of thousands of asylum-seekers—include those who enter the United States, express a fear of return to their home countries, and  then are released from immigration custody in order to pursue asylum claims, without receiving notice from the DHS that they must file their asylum applications within one year of their arrival to the United States. Shortly thereafter the government moved to dismiss the case, raising the same arguments that the Court had rejected when it certified the class. Consequently, on March 28, 2017, the Court denied Defendants’ Motion to Dismiss.

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