BIA Requests Amicus Briefs on Asylum Time Bar Exception Question

Update: The Board of Immigration Appeals (BIA) withdrew the amicus invitation discussed in this blog because the case was rendered moot by action of the parties [PDF version]. However, it is possible that the BIA may address some of the issues in a subsequent case on similar issues.

On October 17, 2017, the Board of Immigration Appeals issued Amicus Invitation No. 17-10-17 [PDF version]. Amicus (friend of the court) briefs on the issue specified in the invitation must be submitted by November 16, 2017.

The issue presented by the Board is as follows:

1. Whether respondents who file an asylum application based on religion and coercive population control grounds more than 1 year after their arrival in the United States and demonstrate that they filed within a reasonable period of the changed circumstances as to their religion claim would be eligible to seek asylum based on both grounds, or whether they must also demonstrate that they filed within a reasonable period of the changed circumstances relating to their coercive population control claim in order to be eligible to seek asylum on that ground.

Understanding the Issue

Under section 208(a)(2)(B) of the Immigration and Nationality Act (INA), an alien must file for asylum within one year of arrival in the United States in order to be eligible. However, there is a limited exception to the one-year time bar found in section 208(a)(2)(D). Under the exception, an alien may file for asylum after more than one year if he or she demonstrates “the existence of changed circumstances which materially affect the applicant's eligibility for asylum…”

Section 101(a)(42)(A) provides that an alien who was persecuted or has a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion may meet the definition of “refugee.” Meeting the statutory definition of “refugee” is a prerequisite to qualifying for asylum. The amicus invitation concerns cases where an applicant has claims based on “religion,” and, as we will see, “political opinion.”

Coercive population control is specifically addressed under section 101(a)(42)(B), which provides that an alien “who has been forced to abort a pregnancy or undergo involuntary sterilization, or who has been persecuted for failure to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion…” It also provides that an alien who establishes that he or she has a well-founded fear of being subject to one of the coercive population control points above shall be deemed to have a well-founded fear of persecution on account of political opinion. As we noted, “political opinion” is another of the five protected grounds listed in the definition of “refugee” in section 101(a)(42)(A).

The Board is requesting briefs on whether an applicant who establishes that he or she qualifies for an exception from the one-year time bar based on changed circumstances relating to a religious persecution claim may also bring a claim based on a coercive population control claim, which falls under “political opinion,” without establishing changed circumstances relating to the coercive population control claim as well. If the answer is no, the alien would be limited to advancing the religious persecution claim, because the political opinion would be barred by the one-year filing requirement of section 208(a)(2)(D). If the answer is yes, the applicant would be able to pursue both claims.

We will update the site with information on the disposition of the issue if and when the Board ultimately issues a new for-precedent decision on the subject.