Excuse of One-Year Asylum Filing Deadline

In removal proceedings, one of the avenues for relief from deportation is an application for political asylum. One of the criteria for qualifying for political asylum is that the applicant must file within one year of the last arrival into the United States. There are, however, exceptions to the one year filing rule.

If the applicant can show extraordinary or changed circumstances to excuse the failure to apply for asylum within one year of the last entry into the United States, then he or she will qualify to apply for asylum if the other criteria is met.

In a recent Board of Immigration Appeals decision, the Court heard the case of a citizen of Mexico who entered the United States in 1993. The respondent in this case is a gay man who was diagnosed with HIV 18 years after his entry into the United States. The Court found that the respondent’s lifelong struggle with his sexuality, compounded by the abuse he suffered as a child, and his positive HIV diagnosis in 2010 constituted extraordinary circumstances to excuse the delay in his filing.

The Court additionally found that homophobic murders are on the rise in Mexico and that 76% of homosexuals in Mexico have been subject to violence based solely on their sexual orientation. The Judge in this case, and the BIA found that seeking the protection of the Mexican Government would have been fruitless because the government would have been unwilling or unable to control the persecution.

The Miami immigration attorneys at Pozo Goldstein have extensive experience in representing clients in removal proceedings. The partners are a former immigration prosecutor and a former Judge. Applying for political asylum is complex and applicants should be represented by experienced, competent counsel.

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