I Waited Too Long to Apply for Asylum in the United States: Can I Apply for Asylum in Canada?

Looking for a way to get around the Safe Third Country Agreement between the U.S. and Canada, perhaps based on a relative with immigration status in Canada.


I entered the United States on a visa, but it expired and I have been working in a friend's store. I had been planning all along to apply for asylum, but never got around to doing so. Now I have discovered that I cannot apply for asylum here because of the one-year filing deadline bar. My aunt is a Canadian citizen and I want to apply for asylum in Canada. Can I?


The United States and Canada have an agreement governing situations like yours, called a Safe Third Country Agreement. This means that a person must apply for asylum in whichever of the two countries he or she arrives in first.

Nevertheless, the agreement could ultimately be overturned by the Canadian courts. In July of 2020, a Canadian federal court judge found the agreement to be unconstitutional, stating that the act of sending people back to the U.S., where they were at risk of imprisonment, violated their rights to life, liberty, and security; in short, that the U.S. is no longer a safe third country. The case was on appeal as of October, 2020, and thus the agreement remained in effect.

In any case, there are many exceptions to this Safe Third Country Agreement, including an exception for applicants who have ties to family members holding legal immigration status in Canada. Since your aunt is a Canadian citizen, you might be exempt from the Safe Third Country Agreement and be allowed to seek asylum in Canada.

However, before determining that the U.S application route is impossible, you might want to investigate whether you fall into an exception allowing for a late application for U.S. asylum, as described in Can I Still Apply for Asylum After the One-Year Filing Deadline?

In brief, you would need to show that a changed circumstance, either in your personal life or in conditions in the U.S. or in your home country, led to your eligibility for asylum, and that you filed within a reasonable time after the circumstance occurred or after you learned of it.

Consider consulting with at least one experienced immigration attorney—perhaps one in the U.S. as well as one in Canada—before deciding how to proceed, and to learn the latest with regard to the Safe Third Country Agreement. Once you leave the United States, you could be subject to a three- or ten-year bar on reentering, depending on how long you have been in the U.S. without lawful immigration status.

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