by Farhad Sethna, Attorney, © 2018
A recent settlement in a court case may provide TEMPORARY respite to asylum seekers who failed to apply for asylum within 1 year of their entry to the USA. In Mendez-Rojas v. Johnson,305 F. Supp 3d 1176 (W.D. Wash., Mar. 29, 2018), the federal government came to an agreement with plaintiff immigrant-advocate groups. That agreement was to permit asylum seekers who had claimed persecution or fear of persecution and had not received notice of the one-year bar to file their asylum applications as long as their cases remained pending.
The agreement does NOT apply to cases that are already completed, that is, to asylum seekers who have already received a final asylum decision. The agreement is only temporary, in that it will last until the 9th Circuit court of appeals makes a decision on the lower court’s decision.
First of all, it is a nationwide settlement. So USCIS asylum offices nationwide, immigration courts nationwide, and USICE or USCBP and Border Patrol offices nationwide have to follow it.
What does temporary settlement in Mendez-Rojas achieve?
The settlement opens the door to deserving asylum seekers to pursue their claim for asylum even though they may have failed to apply for asylum within 1 year of arriving in the USA. Basically, the settlement tries to correct the government agencies’ failure to inform asylum seekers of their rights under US and international law.
What do the government agencies have to do?
These government agencies have to inform aliens who they detain and then release after they either (1) receive a “credible fear” determination from an asylum officer or (2) have told the US government that they are afraid of persecution in their home country THAT the alien must file for asylum with 1 year of arriving in the USA. If they do not file within that 1 year, aliens are legally barred from seeking asylum unless they are (1) Minors or (2) changed country conditions or (3) extraordinary circumstances apply.
In fact, immigration courts have already begun printing and disseminating a notice to aliens who appear in immigration court.
Are ALL aliens who seek asylum affected by this agreement?
No. Aliens whose cases are already decided do not qualify. Aliens who have NEVER been arrested by ICE do not qualify. However aliens who were arrested by USCBP or USICE and then released, will qualify. Therefore, aliens with this background history and who are already in removal proceedings will qualify. Likewise, aliens who have already filed their asylum applications (but filed more than 1 year after arriving in the USA) will qualify.
What does an alien need to do to have this settlement apply to his or her case?
The alien must file a notice with either the USCIS (for a pending affirmative asylum application) or a motion with the Immigration Court (for a pending defensive asylum application)
What should an affected alien do?
Aliens who satisfy the requirements of the Mendez-Rojas temporary settlement should either file their asylum applications quickly OR, if late filed, immediately notify the USCIS or EOIR of their membership in the class of asylum seekers protected by Mendez-Rojas. That will require the USCIS or the EOIR to consider the alien’s asylum claim, which may have otherwise been time-barred.
The effect of the Mendez-Rojas settlement could be far-reaching.
For instance, what about asylum claims that were rejected by the USCIS asylum office as “time barred” and then referred to the Immigration Court where they remain pending. Does that mean that the case should now be transferred back to the Asylum office?
What about aliens who have had their individual or merits hearing at the immigration court but the court has not yet rendered a final decision? Those cases, I would argue, also fall into the purview of the Mendez-Rojas settlement and the court should consider those applicant’s claims for asylum.
Likewise, what about applications pending at the BIA? If the application for asylum was denied simply because it was time-barred, could the petitioner seek reopening and remanding (returning) the case to the Immigration Court to consider the late-filed (or pre-termitted) asylum application?
So many questions still remain, but overall, great news for asylum seekers who were detained by the US government and who did not receive notice of the one-year bar. Like other immigration developments, however, the specifics of how this decision will apply have to be analyzed on a case-by-case basis. There is no one “golden rule” for all cases.
Copyright, Farhad Sethna, Attorney, 2018
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.