Penn State Law joint study finds filing deadline violates human rights

One in five refugees seeking protection in the United States is denied asylum because they did not apply within one year of their arrival and missed the 12-month deadline imposed by Congress, according to a study of the Board of Immigration Appeals' (BIA) asylum decisions, which Penn State Law students scrutinized as part of their work at the Center for Immigrants’ Rights.

Working side-by-side with attorneys at Heartland Alliance’s National Immigrant Justice Center and Human Rights First, students at the center spent countless hours analyzing the BIA’s report. Results of the joint study detailed in a new report, "The One-Year Asylum Deadline and the BIA: No Protection, No Process," indicate that the implementation of the one-year deadline violates human rights. The report is the first to examine how the asylum deadline is handled by the BIA, the highest level of administrative appeal available to asylum seekers. The study analyzed 3,472 BIA asylum cases decided in January from 2005 to 2008.

“Researching the judicial history of the one-year rule for asylum applications required both focus and many long hours. From developing client relationships to creating a sophisticated work product, working for the Center for Immigrants’ Rights developed and refined my professional skills,” said former student Richard Lupinsky, 2010 Penn State Law graduate and a law clerk for the Blair County Court of Common Pleas. “There remained a distinct satisfaction in knowing that in a small way, two law students working late into the night would someday produce a real, tangible effect upon the current state of U.S. asylum law and policy and upon lives of the people that it ultimately affects.”

Enacted in 1996, the one-year filing deadline requires asylum seekers to establish by “clear and convincing” evidence that their asylum applications were filed within one year of their arrival in the United States, or demonstrate that their applications were delayed due to changed or extraordinary circumstances.  Asylum seekers who cannot meet these requirements, even if they are refugees with well-founded fears of persecution, are barred from asylum protection and face deportation to the countries from which they fled.

Among the report’s key findings are the following: 

  • One out of five asylum cases was denied because it was filed after the deadline.
  • In 46 percent of the 662 filing deadline denials, the BIA did not provide any reason for the denial of the asylum application other than that it was submitted after the filing deadline. Of the 662 filing deadline denials, the BIA did not recognize any exceptions to the filing deadline.
  • When an immigration judge granted an exception to the one-year deadline, the BIA affirmed that decision 75 percent of the time. By contrast, when an immigration judge denied asylum based on the one-year deadline, the BIA affirmed the decision 96 percent of the time.

“Student collaboration with immigrant advocacy organizations like NIJC and HRF is part of the center’s mission to promote a modernized immigration system,” said Clinical Professor Shoba Sivaprasad Wadhia. “We are thrilled to have collaborated on this important study, which found that the one-year deadline serves no public policy purpose other than to bar legitimate refugees from obtaining the protection they deserve under international and U.S. law. The one-year deadline is not being applied in the way Congress intended and should be repealed.”

Recommendations

Only legislative repeal of the deadline will ensure that refugees are not denied protection based on a technicality. The U.S. Attorney General, who supervises the BIA, also should take a number of steps outlined in the report – including to revise regulations governing exceptions to the deadline and require adjudicators to consider more circumstances that justify delayed filings.

“This study confirms that the filing deadline is leading the United States to deny asylum to credible refugees who are likely to face persecution in their home countries,” said Eleanor Acer, director of Human Rights First’s Refugee Protection Program. “Not only is the deadline inconsistent with this country’s commitment to protecting the persecuted, but it also wastes already limited government resources litigating a technicality. Congress should simply eliminate the asylum filing deadline.”

Read the complete report.

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Last Updated November 18, 2010