District Court Orders DHS to Provide Asylum Seekers Notice of One-Year Bar

In March 29, 2018
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In Mendez Rojas v. Johnson, District Judge Ricardo S. Martinez has ruled that the United States government’s failure to provide asylum seekers with notice of the one-year asylum application deadline and failure to create and implement procedural mechanisms that guarantee class members the opportunity to timely submit their asylum applications violates the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), governing regulations, and due process.

As background, INA § 208(a)(1) provides in relevant part that a non-citizen “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival . . . ), irrespective of such alien’s status, may apply for asylum in accordance with this section.” 8 USC § 1158(a)(2)(B) mandates that the application for asylum be filed within one year after the date of the alien’s arrival in the U.S. However, 8 USC § 1158(a)(2)(D) provides that an untimely-filed application for asylum may be considered if the alien demonstrates either the existence of either changed circumstances or extraordinary circumstances relating to the delay in filing.

The court certified the following classes and subclasses:

  • Class A (“Credible Fear Class”): All individuals who have been released or will be released from Department of Homeland Security (DHS) custody after they have been found to have a credible fear of persecution and did not receive notice from DHS of the one-year deadline to file an asylum application as set forth in 8 USC § 1158(a)(2)(B).
  • Class B (“Other Entrants Class”): All individuals who have been or will be detained upon entry, express a fear of return to their country of origin, are released or will be released from DHS custody without a credible fear determination, are issued a Notice to Appear (NTA), and did not receive notice from DHS of the one-year deadline to file an asylum application set forth in 8 USC § 1158(a)(2)(B).

Plaintiffs first argued that because the ability to exercise the right to apply for asylum is contingent upon filing in a timely manner, when Defendants fail to provide notice of the one-year deadline or delay providing such notice, they act contrary to congressional intent, and as a result violate both the INA and the APA. Individual class members argued that by failing to provide notice of the one-year filing period, the United States government effectively reduce that filing period, possibly foreclosing legitimate claims. Judge Martinez agreed, stating that if the class members are unaware of the one-year time limit, there is a substantial likelihood that they will not file their applications on time.

Judge Martinez observed:

In considering all of the circumstances of this case, it is important to recognize the limitations of the persons seeking asylum. As Plaintiffs note, many class members have suffered severe trauma, do not speak English, are unfamiliar with the United States’ complicated immigration legal system, and do not have access to counsel. The Court agrees that these vulnerabilities are compounded by the notices that are provided to class members, that notify them they are able to seek relief from removal by appearing before an Immigration Judge, but do not mention the one-year deadline for filing an application for asylum.

For these reasons, the Court ordered the government to provide proper notice to all class members and deem any application filed within one year of adopting the new notice a timely filed application, among other remedies.

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