Wednesday, February 3, 2010

BIA Holds that Changed Circumstances Do Not Result in Automatic One-Year Extension of Time for Filing for Asylum

The Board of Immigration Appeals (BIA or Board), in Matter of T-M-H- and S-W-C-, 25 I. & N. Dec. 193 (B.I.A. Jan. 29, 2010), held that an alien does not receive an automatic one-year extension in which to file an asylum application following “changed circumstances” under INA § 208(a)(2)(D) [8 USCA § 1158(a)(2)(D)] and that under 8 CFR § 1208.4(a)(4)(ii), the particular circumstances related to delays in filing an asylum application must be evaluated to determine whether the application was filed “within a reasonable period given those ‘changed circumstances.”’ Finding that the immigration judge's (IJ's) decision contained insufficient findings of fact with respect to the respondents' specific circumstances for the Board to determine on appeal the reasonableness of an almost nine-month delay for one respondent and an almost one-year delay for the other, the Board remanded the matter to the IJ for further proceedings.

The respondents are a husband and wife who are natives and citizens of China. In a decision dated January 3, 2008, the IJ granted them asylum and declined to decide their requests for withholding of removal and protection under the Convention Against Torture. The Department of Homeland Security (DHS) appealed, contending that the IJ erred to the extent that he determined that the respondents' applications for asylum, which were filed within one year of the birth of their second child, were filed within a reasonable period given those changed circumstances. DHS conceded the truth of the facts set forth by the respondents in their asylum applications but asserts that, as a matter of law, the Board's decision in Matter of J-W-S-, 24 I. & N. Dec. 185 (B.I.A. 2007), precluded granting the respondents' relief in this case. The respondents countered that one year is a reasonable period within which to file an asylum application based on changed circumstances and that the IJ properly determined, based on the undisputed facts presented in this case, that they have a well-founded fear of persecution as a result of their violation of local Chinese family planning policies.

In an opinion written by Board Member Lauri S. Filppu and joined by Board Members Roger Pauley and Anne J. Greer, the Board first noted that DHS did not identify any clear error in the IJ's findings of fact and that it found none either. However, the Board disagreed with the IJ's legal determination that the respondents satisfy an exception to the one-year asylum filing deadline simply because their applications were filed within one year of changed circumstances that materially affect their eligibility for relief. The Board pointed out that Congress enacted the changed-circumstances exception in conjunction with the one-year asylum application filing deadline in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 but that IIRIRA is silent with respect to precisely when an alien must file an asylum application in relation to materially changed circumstances. However, 8 CFR § 1208.4(a)(4)(ii) provides that such an asylum application must be filed “within a reasonable period given those ‘changed circumstances.”’

While neither the statute nor the regulation defines “reasonable period,” the Board found guidance in the Supplementary Information to the regulations implementing the IIRIRA, which states that an alien in a valid immigration status should apply for asylum as soon as possible after expiration of his or her valid status and failure to do so would result in rejection of the asylum application. That Supplemental Information also states with regard to such an asylum seeker that:

Clearly, waiting six months or longer after expiration or termination of status would not be considered reasonable. Shorter periods of time would be considered on a case-by-case basis, with the decision-maker taking into account the totality of the circumstances.

In addition, the Board noted, the Supplemental Information addressing applications more generally (and not simply those of aliens who had been in valid status) states that:

Although there may be some rare cases in which a delay of one year or more may be justified because of particular circumstances, in most cases such a delay would not be justified. Allowing an automatic one year extension from the date a changed or extraordinary circumstance occurred would clearly exceed the statutory intent that the delay be related to the circumstance. Accordingly, that approach has not been adopted.

The Board recognizes that the Supplemental Information is not binding but found it useful in interpreting the regulation at issue and concluded that the IJ improperly gave the respondents an automatic one-year extension from the date when their second child was born without evaluating their filing delays in relation to the particular circumstances involved. However, the Board declined to decide whether the respondents' delay was reasonable as the IJ's decision did not contain sufficient findings of fact with respect to the respondents' specific circumstances to permit the Board to determine on appeal the reasonableness of their delays in filing their asylum applications. Therefore the matter was remanded for the IJ to make additional findings of fact with respect to the particular circumstances involved.

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