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On March 29, 2018, the U.S. District Court for the Western District of Washington issued a decision regarding the one-year filing deadline for asylum that has nationwide implications.  In the decision, Mendez Rojas v. Johnson, 2018 WL 1532715 (W.D. Wash. Mar. 29, 2018), the Court held that the government’s failure to provide adequate notice of the one-year deadline to potential asylum seekers and its failure to provide consistent procedures to timely file for asylum violated the immigration statue, the Administrative Procedure Act and class members’ Fifth Amendment due process rights.

Specifically, the court ordered the government to adopt notice of the one-year filing deadline and provide notice to all current and future class members; accept as timely filed any asylum application filed by a class member within one year of the government’s adoption of its notice; and implement uniform procedures through which class members can file their applications in a timely manner.

Although the court’s decision became effective on March 29, 2018, the government has until May 29, 2018 to appeal. 

To benefit from this decision, an asylum seeker must be a member of one of two certified classes, both of which relate to having not yet filed for asylum or having submitted an untimely application, and a lack of notice from the Department of Homeland Security (DHS) regarding the one-year deadline.

NIJC expects to have more information about how the court’s order will be implemented once the government adopts its new notice and filing procedures.  In the meantime, NIJC pro bono attorneys representing asylum clients who filed for asylum after their one-year deadline should begin gathering evidence to demonstrate their client is a member of one of the designated classes. 

For example, a client who was released from DHS custody without first undergoing a credible fear interview will likely need to demonstrate that he or she expressed a fear of return to a DHS official at some point prior to the deadline and that he or she did not receive notice of the deadline.  Evidence of these two factors could include the client’s affidavit and DHS records of a border interview where the client expressed fear of return (please note, however, that it is not uncommon for border interview records to include boilerplate statements that do not accurately reflect the asylum seeker’s communication).  Please consult with your NIJC point-of-contact to strategize regarding this and other arguments regarding exceptions to the one-year filing deadline for asylum.

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