On Wednesday the Department of Justice made a policy change that will make our immigration system more fair for individuals seeking asylum – protection from persecution in their home countries.

The policy shift came in response to the tragic interplay of our nations overburdened immigration court system and a misguided 20-year-old rule requiring asylum seekers to file their applications for asylum within one year of arrival.

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Until Wednesday, EOIR required asylum seekers to file the application in open court before an immigration judge. Because of the backlog of more than 500,000 immigration cases nationwide, many asylum-seekers do not receive a court date within one year of their arrival in the United States. Thus, they cannot timely file their asylum application.

As a result, some judges find them barred from asylum protection and deport genuine asylum seekers, sending them back to countries where they are in actual danger, or grant others a lesser form of relief, withholding of removal, which leaves them unable to ever become permanent residents, petition for family members, or travel overseas. This leaves would-be refugees in a cruel state of limbo – likely unable to ever safely return to their home countries and simultaneously unable to meaningfully integrate into U.S. society.

Over the past several years, attorneys representing asylum seekers made heroic efforts to preserve asylum claims despite the lack of a court date within one year. They accomplished this by filing motions to advance court hearings with immigration judges, attempting to file the application at the court window instead of in open court, filing the application with a different agency within the US government, and making other creative arguments. 

Thankfully, EOIR’s acting Chief Immigration Judge issued a memorandum on Wednesday that should rectify this problem for individuals who secure legal representation prior to their one-year deadline. The rule change instructs judges to recognize an asylum application filed at the court window before the one-year filing deadline as timely filed. This acknowledges the backlog problem and ceases punishing innocent asylum seekers for circumstances beyond their control.

But the original problem, unfortunately, very much still exists for unrepresented asylum seekers. For various reasons, including a nationwide shortage of free or low cost legal services for immigrants, asylum seekers face difficulties obtaining legal representation. 

A recent study found that well over half, 63 percent, of the nations immigrants in removal proceedings in immigration court have no legal representation. On the “adults with children” docket, largely women and children from Central America fleeing violence and seeking protection in the United States, less than 50 percent of families have legal representation.

Similarly egregious, no agency in the U.S. government even advises asylum seekers of the requirement to apply for asylum within one year of their arrival in the United States, or gives them any guidance whatsoever on how to do so. Indeed, in FY2016 the asylum division of U.S. Citizenship and Immigration Services (USCIS) will conduct more than 65,000 credible fear interviews, which determine whether an individual establishes threshold eligibility for asylum. If the asylum seeker passes that interview and is referred to immigration court to fully pursue her asylum claim, no one tells her she must still file an application for asylum, that it must be done within one year, and how to actually go about filing.

The lack of notice to asylum seekers means that the rule change to allow filing at the courthouse window, rather than waiting for a court date well past the deadline, benefits only those asylum seekers with legal representation or those who are somehow aware of the nuances in the immigration court system.

EOIR must go further and issue guidance to immigration judges that makes clear that where an individual never received notice of the requirement to file within one year and subsequently misses the deadline because they lacked a timely hearing, filing past the one-year mark should be excused and the asylum seeker remains eligible for asylum and receives a chance to prove that she meets the refugee definition. EOIR must also retroactively apply similar protections to recent applicants who missed this life-changing opportunity.

It is also high time for DHS to act. The various agencies within DHS, including USCIS, Customs and Border Protection, and Immigration and Customs Enforcement, must inform each asylum seeker they come into contact with of the duty to file for asylum within one year and how to do so under these new guidelines.

The Chief Immigration Judge’s announcement is a welcome, long overdue, and common sense policy change, but, it does not go far enough. Short of Congressional repeal of the one-year filing deadline, DHS and DOJ now must act to ensure a level playing field for unrepresented asylum seekers. A failure to take these actions will lead to inconsistent adjudication across the country, will gum up our immigration system further with appeals on this technical and unnecessarily complicated issue, and will result in the deportation of vulnerable asylum seekers to countries where they face persecution.

Professor Lindsay M. Harris is an assistant professor of law at UDC David A. Clarke School of Law. She teaches in the Immigration and Human Rights Clinic. She has focused her career on representing asylum seekers fleeing persecution and seeking protection in the United States.


The views expressed by authors are their own and not the views of The Hill.