Submit the Asylum Application Now and Amend It to Strengthen It Later?
Last updated on Jun 29th, 2017
Asylum offers the only realistic path for many non-citizens to avoid deportation and become permanent residents of the US. However, for many of these non-citizens, it will come as a surprise that they are ineligible to apply for asylum unless they file for asylum within one year of their most recent arrival (unless an exception applies).
Inevitably, some people will figure out that there is a deadline, but they will only figure it out with a small amount of time left to beat the deadline. Some of these people will wonder whether it makes sense to submit a bare bones asylum application in order to beat the deadline.
Beating the deadline comes with an obvious benefit. Beating the deadline enables an asylum officer to grant the asylum application without deciding whether you should be granted an exception to the 1-year filing rule. A granted asylum application enables an individual to remain in the US for an indefinite period of time, to petition for derivative asylee status for certain family members, to later adjust status to that of a lawful permanent resident, and to later become a US citizen.
Submitting a bare bones application would not be so bad if an individual could freely supplement or amend the application while retaining the original filing date. In some cases, an individual will be allowed to amend his or her application while retaining such date. In other cases, amending the application will not be allowed by the asylum officer who has discretion to accept or not accept amendments. In still other cases, amending the application will, according to the government, amount to a new application, so the original filing date is not retained. See Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015).
Submitting a bare bones application may not be necessary or wise in some situations.
Considerations to keep in mind are whether an applicant will qualify for an exception to the one-year filing deadline. Another consideration is whether the applicant has more than a long shot of receiving asylum even if he or she had a fully fleshed-out application. Another consideration is how important quickly receiving a work permit is to the applicant.
Frivolous Asylum Application
Some people who are prudent, who have endeavored to research immigration laws on their own, and who have only managed to get ankle-deep in the understanding-asylum-law waters might have a somewhat understandable fear of submitting a bare bones application, because they are concerned it might be considered as a frivolous asylum application. The punishment for filing a frivolous asylum application is severe; few immigration-related acts receive as much punishment from the government. INA § 208(d)(6) provides that an individual who has “knowingly made a frivolous application for asylum” after receiving warning of the consequences of making such an application “shall be permanently ineligible for any benefits” under the INA.
However, concerns about submitting a frivolous application are often misplaced. “Frivolous” in plain English is understood to mean, among other things, weak or light-weight. However, frivolous, in the asylum application context, should be understood to mean fraudulent.
There are many considerations to keep in mind when deciding how to handle an asylum application when you are near the 1-year filing deadline.
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- August 2017 4th Cir. Case: Rule Concerning Applying for Asylum After Having Been Previously Removed (Part Two)
- August 2017 4th Cir. Case: Rule Concerning Applying for Asylum After Having Been Previously Removed (Part One)
- The Waivers Available to Exchange-Visitor Foreign Medical Graduates Who Are Medical Residents (Part Two)
- The Waivers Available to Exchange-Visitor Foreign Medical Graduates Who Are Medical Residents (Part One)
- July 2017 Decision from the 2nd Circuit: Why Even Permanent Residents Should Consult an Attorney Before Travelling Abroad
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