Exceptional Circumstances Excusing Missed One-Year Asylum Filing Deadline Can Include Incompetence of Notario or Attorney

Arguing for an exception to the one-year deadline for asylum applications in the U.S.

A one-year deadline applies to the filing of asylum applications in the U.S., whether you are filing affirmatively or as a defense in immigration court proceedings. If you miss that deadline, you become ineligible for asylum--unless you can prove that some justification exists for your missing it, such as "extraordinary circumstances."

Does the Law Recognize Incompetent Legal Help as a Reason for Missing the One-Year Asylum Filing Deadline?

It is all too common for non-citizens of the U.S. to pay a notario, legal consultant, or even a supposed lawyer who turns out not to be the real thing, or to be running a scam operation.

Such predators on the immigrant community may fail to file your asylum application, or file it too late. You may not find this out until the one-year deadline has passed. You may even go back to find that the person's shop has disappeared.

If you would still like to apply for asylum, don't lose hope. While U.S. immigration law contains no explicit exception for people who were the victim of unscrupulous notarios or scammers, a more general exception to the filing deadline exists that might help. It’s called the “extraordinary circumstances” exception.

Proving That the Extraordinary Circumstances Exception Excuses Your Late Filing for Asylum

As a general rule, if events in your own life directly relate to your failure to file within the one-year filing deadline, and you file within a reasonable period after the extraordinary circumstance stopped affecting you, your asylum application may still be considered by U.S. Citizenship and Immigration Services (USCIS). You will also need to show that you did not intentionally create these extraordinary circumstances through your own actions or lack of action.

Therefore, in a case involving incompetent legal help, you will need to both explain and document what happened, and show that it meets this exception, for example by:

  • proving that you visited the notario, lawyer, or consultant in the first place, perhaps with any appointment letters, receipts for parking or transportation that you took that day to the person's office, and any materials you have showing where that office was.
  • drafting a personal affidavit detailing your reasons for trusting the person (including cultural and language reasons that you believed this person to be an attorney or equivalent to one) and exactly what the person promised you and then did or didn’t do
  • including copies of any news articles describing people affected by, or law enforcement efforts against, this person, and
  • documenting your efforts to contact the person and push forward with your case, for example with copies of any emails, letters, or phone records.

You will need to act quickly to assemble these materials and your asylum application, in order to meet the requirement that you filed within a reasonable period after the extraordinary circumstance stopped affecting you. In this case, USCIS is likely to regard the point at which you realized the person had disappeared as the starting point for your “reasonable time” period.

Your best bet would be to consult an attorney for assistance in preparing your asylum application as well as your request that an exception be made to the one-year filing deadline, which will need to accompany your application.

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