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

One question that comes up from foreign migrants who entered the United States fleeing persecution, but who were not able to apply for asylum within the one-year filing deadline (or didn't know they had to do so) is the following: If I've lost my chance to apply for asylum here, what about applying going to Canada and applying for asylum there?

The United States and Canada have an agreement governing situations like this, called a Safe Third Country Agreement. We will describe its basic provisions here, including whether it might help someone who can no longer apply for asylum in the United States.

What the Safe Third Country Agreement Says About Asylum Seekers Who Lived in the U.S. Then Go to Canada

The Safe Third Country agreement provides that migrants must apply for asylum in whichever of the two countries they arrive in first, either the United States or Canada. Although the original agreement applied only to crossings at official ports of entry, and not between, the growing number of asylum seekers entering Canada via unofficial crossings led to a renegotiation, such that all entries, across the entire U.S.-Canada border, are covered.

What's more, the latest agreement version makes people who cross the U.S.-Canada border without authorization ineligible for asylum and other humanitarian protections if they are caught or turn themselves in within 14 days of crossing. After a screening interview, they can be turned back to the country they came from.

Therefore the short answer is "No," one cannot give up on the U.S. asylum system and head for Canada to apply.

There are, however, many exceptions to this agreement, including for:

• applicants who have ties to family members holding legal immigration status in Canada
• unaccompanied minors, and
• people who have a valid visa with which to enter Canada.

Such persons might be exempt from the Safe Third Country Agreement and be allowed to seek asylum in Canada. In addition, either country can exercise discretion and make an exemption in the public interest. Also keep in mind that if even one member of your family meets these criteria, they might eventually be able to help the others obtain Canadian residency.

Would an Exception Allow You to Apply for Asylum in the United States After the One-Year Filing Deadline?

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. Examples of changed circumstances might include a shift in political regime accompanied by increased persecution of a group of which you are a member, news of active persecution of someone with whom you're closely associated, your coming out as gay or lesbian if it's a common cause of persecution in your country, and so on.

Getting Legal Help

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. Also see How to Get a Lawyer to Represent You Pro Bono (Free) in Immigration Court Removal Proceedings (which contains tips for immigrants who aren't in deportation proceedings, as well).