There is a single line in the President’s immigration proposal that has escaped a lot of attention. As the idiotic “back of the line” concept and the path to citizenship dominate the headlines, the language of the proposal indicates that the administration would like to eliminate one of the most onerous obstacles to asylum for thousands of applicants- the notorious one year rule. If this became law, the President will preside over a vast improvement in U.S. refugee and asylum law through a procedural change that will make thousands of people eligible for asylum.
At the very end of the President’s proposal, the administration writes that the proposal “better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.” To us, this can only be referring to the one-year rule for applying for asylum. The one year rule requires an individual to apply for asylum within one year of the date of admission in order to qualify for asylum. While there are regulatory exceptions to the one year rule, these are stringently applied and many people who have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, political opinion or membership in a particular social group have been unable to receive the protection of asylum.
The one year rule has been disastrous for many people who have fled harm. It is applied regardless as to whether the applicant knew of the rule and generally fails to take account of all but the most serious forms of post traumatic stress disorder. In addition, it discourages many people from seeking asylum when they do not believe that they can meet one of the exceptions to the one year rule. It has also made a mess of the immigration courts. Here is how it works in practice. An individual in the U.S. for over a year applies for asylum with the U.S. Citizenship & Immigration Service. The asylum office can not grant the application unless the applicant can establish that he qualifies for one of the exceptions. If the asylum office denies the application for asylum, they place the applicant into removal proceedings. (Of course, the asylum office calls this the much nicer, yet misleading “being referred to the immigration judge”) An immigration judge then may review the application for asylum. If the judge decides that a person is ineligible due to the one year rule, the judge must consider whether it is more likely than not that the applicant will be persecuted or tortured. Under such circumstances, a judge can enter an order of removal but withhold removal to the country of persecution or torture. So, the government is allowed to deport such an individual, just not to that individual’s home country. Realistically, there is no other country where the individual may be deported to, so the individual is allowed to remain in the U.S. with work authorization, often being required to report to ICE, but never being able to travel or get a green card. So, individuals who fail to apply for asylum within one year of the date of entry are provided with the same form of humanitarian protection as people convicted of “particularly serious crimes” or who have participated in the persecution of others. Clearly, these are not equivalent infractions, yet the result in the same.
The profusion of asylum cases that can only become withholding or torture cases due to the rigid interpretation of the one year rule has contributed to the immense backlogs in immigration courts. Since the asylum office must refer every single one year rule case to the court, many cases that should be resolved at the asylum office now wind up in court. And why? Because they did not apply at the first instance possible? The one year rule reflects an erroneous belief that a person who truly fears persecution will apply immediately upon arrival and that failure to do so is an indicator of fraud. The one year rule reflects Congress’ lack of faith in the asylum officer and immigration judges who try thousands of cases every year. An asylum officer or immigration judge is almost always able to tell between someone opportunistically and cynically seeking asylum improperly as opposed to a legitimate asylum seeker, regardless of when they filed.
Immigration reform that gets rid of the one year rule and lets the asylum officer and immigration judges do their job would be a tremendous improvement in asylum law and we hope that this little-noticed provision makes it into any final bill.