An asylum applicant must establish that her asylum application was filed (1) within one year of her last entry into the United States; or (2) within one year after her valid visa status expired. If an applicant misses that one-year deadline, her application may proceed if she can demonstrate she qualifies under an exception (discussed in later posts).
An applicant must show she meets the deadline “by clear and convincing evidence,” 8 CFR § 1208.3(a)(2)(A), and “[t]to the satisfaction of the asylum officer, the immigration judge, or [the Board of Immigration Appeals]”, 8 CFR § 1208.3(a)(2)(B). In practice, that means if an applicant before USCIS officers fails to establish she meets the one-year filing deadline or otherwise qualifies for an exception, those officers will refer her application to the Immigration Court. See USCIS, Asylum Division Officer Training Course, One-Year Filing Deadline at 4 (May 6, 2013).
The one-year deadline applies only to asylum applications. It does not apply to withholding of removal or for relief under the Conventions Against Torture (CAT)—meaning if an applicant fails to meet the one-year filing requirement for asylum, she may still apply for those other forms of relief.
Calculating the one-year filing period
The USCIS’s internal guidance documents clarify how immigration officers calculate the one-year filing deadline. See generally, USCIS, Asylum Division Officer Training Course, One-Year Filing Deadline at 5-6 (May 6, 2013).
The applicant’s one-year filing period begins with the date of her Iast arrival into the United States as “day zero,” meaning the count begins on the following day. See Minasyan v. Mukasey, 553 F.3d 1224 (9th Cir. 2009) (“[T]he statute specifically provides that the one-year period for filing an asylum application commences after the date of arrival, meaning that his date of arrival does not count as ‘day one’ for purposes of the filing deadline.” ). The applicant’s filing period then spans from that “day zero,” i.e. her day of arrival, to the same calendar day the following year. For example, an applicant who last arrived on April 5, 2020, and files on April 5, 2021, will be considered to have timely filed. If the applicant’s deadline date falls on a weekend or a legal holiday, the deadline will be pushed to the following business day. 8 CFR § 1208.3(a)(2)(B)(ii).
An affirmative asylum application is considered “filed” when the USCIS Service Center receives it—although the application can still be timely if the applicant can show by clear and convincing evidence that her mailing date was within the deadline, even if the USCIS actually receives it beyond that date. 8 C.F.R. § 208.4(a)(2)(ii); see Nakimbugwe v. Gonzales, 475 F.3d 281 (5th Cir. 2007). Once filed, the applicant’s filing date is usually marked by a date/time stamp on the applicant’s I-589 form.
Other timing issues
An applicant should be able to comply with the one-year filing deadline even if she initially arrived to the U.S. without filing for asylum, departed for a brief period, then returned to the U.S. In that case, she may still qualify for asylum if she applies within the following year of her most recent arrival. The Board of Immigration Appeals (BIA) would consider that later arrival as the applicant’s “last arrival” date for the purposes of her asylum application. See Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008).
If an applicant first applies for asylum within the one-year deadline with immigration officers, then she renews or refiles her application while in removal proceedings in immigration court, the court would consider her application timely filed based on that initial application. See Matter of S-B-, 24 I&N 42 (BIA 2006).
Burden of proof
The applicant bears the burden of proof when showing she meets the one-year deadline. She must show through clear and convincing evidence that either (a) her date of arrival was within that period; or (b) she was outside the United States at some point over the past year before she filed for asylum.
That later form of proof of presence outside the United States is especially helpful where an applicant cannot establish her exact arrival date. For example, in Khunaverdiants v. Mukasey, 548 F.3d 760 (9th Cir. 2008), Khunaverdiants, an applicant from Iran, filed for asylum on August 6, 2001. Id. at 766. His asylum application, personal statement, and direct testimony attested he was imprisoned in Iran until January 25, 2001. Id. at 767. As further support, he provided a receipt for $22,000 for bail paid by his wife to the Iran Public Prosecutor’s Office dated January 26, 2001. Id. The Ninth Circuit Court of Appeals found that proof of his exact date of last arrival was not necessary “when other clear and convincing evidence established that Khunaverdiants necessarily filed his asylum application less than one year after arriving in the United States.” Id. at 767.
Forms of Evidence: Documentary
An applicant can establish she meets the one-year requirement through documentary evidence “such as passport entries, boarding passes, leases, etc.” USCIS, Asylum Division Officer Training Course, One-Year Filing Deadline at 8 (May 6, 2013). If the applicant cannot provide documentary evidence, USCIS officers may consider reasonable explanations for such lack of evidence, such as the circumstances that lead to the applicant’s flight from her home country. Id.
Forms of Evidence: Testimonial
An applicant who cannot provide documentary evidence may still prove she meets the one-year deadline by relying on credible testimonial evidence. In general, U.S. law recognizes an asylum applicant’s credible testimony as sufficient evidence when determining refugee status. See 8 CFR § 208.13(a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”). And specifically with respect to the one-year filing deadline, the USCIS has indicated that testimony, “[s]tanding alone without witness corroboration or documentary evidence, [and] when credible, [] can be sufficiently clear and convincing to lead an asylum officer to a ‘firm belief’ that the applicant arrived within one year before the filing date.” USCIS, Asylum Division Officer Training Course, One-Year Filing Deadline at 8 (May 6, 2013). In fact, the Ninth Circuit Court of Appeals has rejected the interpretation that, when establishing the one-year filing requirement, an applicant needs to go beyond testimony alone and corroborate her testimony with other forms of evidence. See Singh v. Eric H. Holder Jr., 649 F.3d 1161 (9th Cir. 2011) (finding, based on “[b]asic principles of statutory construction,” no corroboration requirement in the regulation requiring asylum applications to be timely filed).
