The Illegal Immigration Reform & Immigrant Responsibility Act's One-year Filing Deadline on Applications for Asylum: the Narrow Interpretation and Application of Exceptions to the Filing Deadline

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 22 No. 2

Georgia State University Law Review

Volume 22 , ,

Article 4

Issue 2 Winter 2005

12-1-2005

The Illegal Immigration Reform & Immigrant Responsibility Act s One-Year Filing Deadline on Applications for Asylum: The Narrow Interpretation and Application of Exceptions to the Filing Deadline

Susan S. Blum

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Recommended Citation

Blum, Susan S. (2005) "The Illegal Immigration Reform & Immigrant Responsibility Act's One-Year Filing Deadline on Applications for Asylum: The Narrow Interpretation and Application of Exceptions to the Filing Deadline," Georgia State University Law Review: Vol. 22: Iss. 2, Article 4.

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THE ILLEGAL IMMIGRATION REFORM & IMMIGRANT RESPONSIBILITY ACT'S ONE-YEAR FILING DEADLINE ON APPLICATIONS FOR ASYLUM: THE NARROW INTERPRETATION AND APPLICATION OF EXCEPTIONS TO THE FILING DEADLINE

Introduction

After an intensive period of immigration to the United States and amid a brief period of anti-immigrant fervor among Americans, Congress enacted the Dlegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996.¹ Although members of Congress have generally lauded the IIRIRA as "landmark" legislation, many opponents of the IIRIRA describe the Act as "the harshest, most procrustean immigration control measure in [the twenty-first] century" because it oppresses a particularly vulnerable and well-deserving group of likely immigrants—refugees.² Even refugees—those seeking a safe haven in the United States because of a reasonable fear of persecution or death in their home countries— must adhere to the IIRIRA's strict one-year deadline for filing asylum applications.³

1. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified in scattered sections of 8 U.S.C.); see Michele R. Pistone & Philip g. Schrag, The New Asylum Rule: Improved but Still Unfair, 16 geo. immigr. L.J. 1, 1-2 (2001); Peter H. Schuck & John Williams, Removing Criminal Aliens: The Pitfalls and Promises of Federalism, 22 Harv. J.L. & pub. pol'y 367, 368 n.l (1999). Between 1981 and 1995, the United States admitted over 12 million immigrants. U.S. Bureau of the Census, Statistical Abstract of the U.S.: 1997 10 (117th ed. 1997), available at http://www.census.gOv/prod/3/97pubs/97statab/pop.pdf.

2. Schuck & Williams, supra note 1, at 371. Opposition arose from the URIRA's expansive retroactivity provisions, possible unconstitutional limitations to judicial review, exclusion of the Immigration and Naturalization Service (INS) discretion in extreme hardship cases, and expansion of the aggravated felony category. Id. at 371 n.16; see William Branigin, Congress Finishes Major Legislation; Immigration; Focus is Borders, Not Benefits, wash. post, Oct. 1, 1996, at Al; Pistone & Schrag, supra note 1, at 2.

3. See Immigration and Nationality Act § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B) (2000).

463

Problems arise when a refugee, who would otherwise satisfy the statutory requirements and receive asylum, files an asylum application after the expiration of the one-year deadline.⁴ Without regard to the merits of the claim, the IIRIRA bars a refugee from gaining asylum protection if the refugee does not file within one year of entry into the United States, unless the refugee satisfies one of the two exceptions to the deadline.⁵ While the exception list is not exhaustive, the Board of Immigration Appeals (BIA) applies the exceptions very narrowly.⁶ Furthermore, an asylum-seeker must file an asylum application "within a reasonable period" of time after the occurrence of the exception to the one-year deadline.⁷

This Note discusses the problems refugees face in adhering to the strict filing deadlines imposed by the IIRIRA to qualify for and receive asylum. Part I provides an overview of the protections granted to refugees through U.S. asylum law, focusing on the history of and recent developments in U.S. immigration and asylum law.⁸ Part II focuses on the one-year deadline for filing an application for asylum, highlighting the difficulties that ensue because of the immigration court's narrow interpretation of the exceptions to the one-year deadline.⁹ Part III grapples with the outstanding questions that remain concerning what the Bureau of Citizenship and Imrnigration Services, Immigration Judges, and the BIA consider a "reasonable time" after the occurrence of an exception in filing within the one-year deadline.¹⁰ Finally, Part IV demonstrates the impact the one-year filing deadline has on both the refugee

4. See id.

5. 8 C.F.R. § 208.4(a)(2)(i)-(ii) (2004); Michele R. Pistone, Assessing the Proposed Refugee Protection Act: One Step in the Right Direction, 14 GEO. IMM1GR. L.J. 815, 822 (2000).

6. See 8 C.F.R. § 208.4(a)(4)(i) (2004). The terms changed circumstances and extraordinary circumstances in the Act "may include, but are not limited to" the exceptions listed. Id. (emphasis added); see Immigration and Nationality Act § 208(a)(2), 8 U.S.C. § 1158(a)(2) (2004); Am. Immigration Law Found., Practice Advisory: Obtaining Federal Court Review Notwithstanding the Bar in Asylum One-Year deadline Challenges (Nov. 15, 2002, last updated Nov. 22, 2002)), http://www.ailf.orgAac/lac_pa_112002.asp [hereinafter AJLF Practice Advisory].

7. 8 C.F.R. § 208.4(a)(4)(ii) (2004); 8 C.F.R. § 208.4(a)(5)(v) (2004).

8. See discussion infra Part I.

9. See discussion infra Part H 10. See discussion infra Part ID.

2005] IIRIRA ONE-YEAR FILING DEADLINE 465

community and the United States.¹¹ The country*s founders did not limit citizenship by birth or background, and the current President affirms this sentiment about immigration: "America [is] at its best... [when] [we] welcome not only immigrants themselves, but the many gifts they bring and the values they live by . . . mak[ing] our nation more, not less, American."¹²

I. Protections Granted to Refugees Through United States Asylum Law

A. Sources of United States Immigration and Asylum Law

Current U.S. asylum law derives from two international treaties: the 1951 United Nations Convention Relating to the Status of Refugees (1951 Convention) and the 1967 United Nations Protocol Relating to the Status of Refugees (1967 Protocol).¹³ The humanitarian principles embodied in these international agreements create an obligation for the participating countries to protect individuals outside their home countries who have a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership" in a particular social group, or political opinion.¹⁴

11. See discussion infra Part IV.

12. President George W. Bush, Speech to the Immigration and Naturalization Service Naturalization Ceremony (July 10,2001), http://ww.whitehouse.gov/news/releases/2001/07/20010710-l.html.

13. Convention Relating to the Status of Refugees, July 28,1951, 19 U.S.T. 6577, 189 U.N.T.S 137 [hereinafter 1951 Convention]; Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (1967) [hereinafter 1967 Protocol]; regina germain, AULA's asylum Primer, a Practical Guide to U.S. asylum Law and Procedure (2d ed. 2000). The 1967 Protocol, to which the United States agreed in 1968, incorporates by reference Articles 2 through 34 of the Refugee Convention and the refugee definition, as well as various rights that countries should give to refugees, "such as education, travel, employment, housing, and social security rights." germain supra, at 1. Over 130 countries are parties to the Refugee Convention, the Protocol, or both. Id.

14. 1951 Convention, supra note 13, art. 1(A)(2); 1967 Protocol, supra note 13; Rachel Bien, Note, Nothing to Declare but Their Childhood: Reforming U.S. Asylum Law to Protect the Rights of Children, 12 J.L. & pol'y 797, 802-03 (2004).

1. Definition of Refugee

The Immigration and Nationality Act (INA) defines a refugee as:

[A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ... ,¹⁵

Not until Congress passed the Refugee Act of 1980 (Refugee Act), which comprised a nearly identical definition of "refugee" as the 1967 Protocol, did the United States execute the earlier international treaties' obligations.¹⁶ Even with Congress's astute attention to U.S. international treaty obligations in drafting the Refugee Act, the statutory definition of "refugee" generates controversy over the meaning of the term and the implementation of its statutory directive.¹⁷

15. Immigration and Nationality Act § 101, 8 U.S.C. § 1101(a)(42)(A) (2004); see discussion infra Part I.A.3; see also germain, supra note 13, at 3.

16. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) (codified in scattered sections of 8 U.S.C); see S. Rep. No. 96-256, at 4 (1979), as reprinted in 1980 U.S.C.C.A.N. 141, 144 (highlighting that the Refugee Act would "bring the United States law into conformity with our international treaty obligations under the [1951 Convention and 1967 Protocol]"); germain, supra note 13, at 3; Bien, supra note 14, at 803 n.25; see also Karen Musalo, Refugee Law and Policy: A Comparative and International approach 64 (2d ed. 2001). While the United States began...