Under U.S. law, you are expected to apply for asylum either within one year of your last U.S. entry or one year after your valid visa status expires. Unfortunately, if you have missed this deadline, you must also prove that there was a good reason for your late application for asylum in order to go forward. One of the most useful grounds for claiming this exception is known as the "extraordinary circumstances" exception, discussed here.
Standards for Extraordinary Circumstances Exception
To succeed in showing that your lateness in applying for asylum should be excused based on extraordinary circumstances, whether you are applying for asylum affirmatively with U.S. Citizenship and Immigration Services (USCIS) or requesting asylum as a form of relief from deportation in immigration court, you'll need to show that:
- the extraordinary circumstance that took place in your life was directly related to your failure to file within the one-year deadline, and
- your own intentional action or inaction did not cause the extraordinary circumstance.
Telling a good story will not be enough. It will be important to include clear and convincing evidence to prove to the immigration decision-makers that you meet this exception to the one-year asylum filing deadline.
Documents to Prove You Meet the "Extraordinary Circumstance" Exception
What type of extraordinary circumstances might have prevented you from filing on time? Common examples of extraordinary circumstances include:
- Your own health: If medical issues prevented you from filing a timely application, you should submit reports from health professionals showing that you were incompetent, disabled, or otherwise unable to apply for asylum. These reports should be signed by a medical professional and on official letterhead and should be accompanied by copies of any X-rays, medical charts, or medical notes to substantiate them.
- Death or serious illness in the family: If the death or serious of a close family member affected your ability to apply for asylum on time, provide a copy of a death certificate or medical records as well as documents showing your role in caring for your family member and how the death or illness affected you personally. For example, if you were providing around the clock care, you should provide evidence of your family member's extensive medical needs, such as letters from home health care or medical professionals and detailed lists of the types of assistance you provided.
- Abuse/crime issues: If you were prevented from filing for asylum because an abusive family member or another person restricted your freedom or you were a victim of crime, you should provide police reports, affidavits from individuals who were aware of the abuse or criminal activity, and other evidence that the abuse or crime occurred. These reports should be detailed and list the specific reasons that the abuse or crime prevented you from filing an asylum application. For example, if an abusive spouse confiscated your passport or restricted you from using the computer or leaving the house, explain this in a signed affidavit. You should also include details about how and when you were finally able to submit your application.
- Incompetence of notario or attorney who assisted you. If you paid someone who turned out to be a scammer or who made major oversights in your case (like failing to turn in your Form I-589 on time), that could be grounds for claiming this exception. Act quickly after discovering what happened. Document what occurred, for example with proof that you really saw this person (appointment letters, receipts for parking by his or her office, and so on); a personal affidavit detailing your reasons for trusting the person (including cultural and language reasons that you believed him or her to be an attorney or the equivalent) and describing what the person promised and then did or didn't do; copies of news articles describing people affected by, or law enforcement efforts against, this person; and finally documents showing your efforts to contact the person and push forward with your case.
- USCIS rejection or return of your Form I-589. The agency rejects a lot of asylum applications for minor reasons, such as an empty box that it thinks should have been filled in. And it often waits months before doing so, taking you past the deadline. In an affidavit, you'll want to explain that you filed an asylum application prior to the expiration of the one-year deadline, but that it was rejected as not properly filed, was returned for corrections, and that you are refiling within a reasonable period thereafter." Include any mailing receipts and copies of correspondence with USCIS so that it will be convenient to the next person who reviews the application.
These are not the only examples of the types of situations that can be used to prove that you meet an exception to the asylum filing deadline.
Make Sure Any Documentation Is Clear, Concise, and Complete
As with any evidence you submit to USCIS or the immigration court, you should make sure that you provide complete, clear, and convincing documentation, including a certified English translation of any documents in other languages.
For example, documents from a medical office or a government agency should be on official stationery or letterhead and should be signed and dated. Official reports and printouts from websites should include the full website address or citation and you should provide a statement explaining the reason why you are submitting this information along with your asylum application.
Sworn affidavits from friends, family members, or community leaders should include their full address, contact information, and date of birth.
Your best bet is to consult with an experienced immigration attorney, who can ensure that your evidence is thorough, well-researched, and specifically tailored to your individual situation.