** LEGAL UPDATE **
In order to seek asylum in the U.S., you must submit your application within the first year of your last entry, unless you meet one of the exceptions to this deadline. For many asylum seekers who traveled in and out of the U.S. irregularly, and were detained by the Department of Homeland Security (DHS) and then released, meeting this deadline became challenging or impossible. These asylum seekers were often not given their first court hearing (where they could file their asylum application) until they had been in the U.S. for more than one year and many were not informed of the deadline.
In response to asylum seekers being unjustly disqualified from applying for asylum, a lawsuit was brought against the U.S. government in federal court in a case called Mendez Rojas v. Johnson. In March 2018 the federal court found that not providing adequate notice of the one-year deadline to asylum seekers violated immigration and administrative law, and the right to due process. The government appealed this decision is and the case is now waiting to be heard by the Ninth Circuit Court of Appeals.
While the case is on appeal, certain asylum seekers who missed their one-year deadline may take advantage of this decision. The ruling applies only to those who were detained by the Department of Homeland Security (DHS) after their entry into the U.S. and who expressed a fear of returning to their home countries or passed credible fear interviews.
There are two main classes of asylum seekers covered by the initial decision in Mendez Rojas: Class A and Class B.
People in Class A were detained by DHS at entry and found to have a credible fear of persecution after being given a credible fear interview. Those in Class A were also not given notice of the one-year deadline to apply for asylum and have not yet applied for asylum or filed for asylum after the deadline. Those in Class A are typically in removal proceedings, but need not be under the Mendez Rojas decision.
People in Class B were detained by DHS at entry and expressed a fear of returning to their home country and did not have a credible fear interview, but were issued a Notice to Appear (NTA), which formally begins the removal (deportation process). Those in Class B, like those in Class A, either have not yet applied for asylum or applied after their one-year deadline. Those in Class B are also typically in removal proceedings, but need not be.
The court in Mendez Rojas said that the government had to provide notice of the one-year deadline to people detained by DHS who expressed a fear of returning to their home countries. Furthermore, the court held that government had to accept as timely asylum application filed by members of Class A and Class B.
While the decision is on appeal, the order is not effective. However, the U.S. government has agreed to find the asylum applications of all class members timely filed while it is pending. If you believe you are a class member you should notify the court or asylum office where your case is pending immediately.
If you have an immigration attorney, he or she can file the appropriate notices for you. If you do not have an attorney you should personally inform the adjudicator in your case of your class membership.
The Mendez Rojas decision does not apply to people who were not detained by DHS at entry into the U.S. and also does not apply to those who did not express fear of returning to their home country or did not have a credible fear interview.
Importantly, it also does not apply to people who have received a final order of removal. If your case was denied in immigration court but is now pending appeal at the Board of Immigration Appeals (B.I.A.), you still qualify to assert class membership.
The litigation over this issue is still developing and for now the government will not deny asylum applications of class members based on them not filing by the one-year deadline. Class members should keep themselves informed of developments in the case after it is heard by the Ninth Circuit Court of Appeals.
Effective Date: March 29, 2018