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Asylum Application filed late: What are your options?

An asylum applicant has but one year to file a claim after arrival in the U.S. The clock starts to run from the last arrival date in the U.S. Two exceptions exist in the Statute: a) Changed circumstances that would materially affect the applicant’s eligibility or b) extraordinary that delayed the filing of the asylum application.

CHANGED circumstances

Changes in the applicant’s country such as a recent uprising against the government that could endanger the safety of the applicant or changed conditions of the applicant in the U.S. that would materially affect the applicant’s eligibility for asylum are a basis for a late filing. An example of the latter would be that the applicant had participated in rallies in the U.S. objecting to the applicant’s government’s positions or programs that if known to his government would place the applicant in danger in returning to his/her country. The applicant would then be entitled within a reasonable time to file after these activities became known by the applicant’s government.

EXTRAORDINARY circumstances

These circumstances apply to serious illness or mental or physical disabilities; legal disability such as mental impairment or if the applicant is a minor; or ineffective assistance of counsel; or the death or serious illness or incapacity of a member of the applicant’s immediate family.

Withholding of removal

If the applicant fails to file within one year and cannot prove changed or extraordinary conditions or circumstances, there is another option: Withholding of Removal. This category is useful to those who have not filed within one year. If the applicant can prove past persecution, and as a result, the applicant’s life or freedom would be at peril, then he/she may receive Withholding in spite of the failure to file within one year. If the applicant cannot prove past persecution, still if the applicant can show that it would be more likely that not that the applicant would be persecuted on account of race, religion, national origin, political opinion or membership in a particular social group, Withholding would be available. Only a Judge in a Removal Hearing may grant Withholding.

Withholding does not allow the holder to confer benefits on a spouse or a child.

Work authorization

An alien granted Withholding is automatically entitled to work authorization. The applicant need not apply for an Employment Authorization Document. The Withholding document would be sufficient. An extension of work authorization is not necessary.

Travel

Withholding recipients may travel and apply for a Refugee Travel Document to travel. However, a return to the country of claimed persecution could be deemed as abandonment of Withholding unless there are compelling reasons for the applicant’s assuming the risk of returning to his/her country. If there are such compelling circumstances it would probably be more prudent to apply to the USCIS for Advance Parole to avoid the possibility of Immigration’s believing the refugee status has been abandoned.

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