OCIJ on One-Year Filing Limitation for Asylum Applications
Memorandum
To: All Immigration Judges
All Court Administrators
All Judicial Law Clerks
From: Office of the Chief Immigration Judge
Subject: One-Year Filing Limitation for Asylum Applications
On April 1, 1998, the one-year filing limitation in section 208(a)(2)(B) of the Immigration and Nationality Act (Act) will become effective for asylum applications filed after that date. The Department of Justice, as a matter of policy, has requested that Form I-589 applications for asylum be accepted thru April 1, 1998. In addition, a Congressional mandate in the Department of Justice Appropriations Bill requires significant changes to the processing of FBI fingerprint checks. As a result of these and other changes, a new revised version of the Form I-589 has been drafted. It is expected to be printed and distributed in April or May.
Section 208(a)(2)(B) of the Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act, provides that an alien may not apply for asylum unless he or she demonstrates by clear and convincing evidence that the alien applied for asylum within 1 year after the date of arrival in the United States. An alien may apply for asylum beyond the one- year limitation, only if he or she demonstrates either the existence of changed circumstances which materially affect eligibility for asylum or extraordinary circumstances relating to the delay in filing an application for asylum within one year after arriving in the United States. See Section 208(a)(2)(D) of the Act. The terms “changed circumstances” and extraordinary circumstances” are discussed in the regulations. See 8 C.F.R. Section 208.4(a)(4) and (5). It should be noted, an asylum application is also considered an application for withholding relief, and the one-year filing limitation in section 208(a)(2)(B) of the Act does not apply to applications for withholding of removal under section 241(b)(3) of the Act. See 8 C.F.R. Section 208.4(a).
The regulations provide that the one-year filing deadline for asylum applications shall be calculated from the date of the alien’s last arrival in the United States or April 1, 1997, whichever is later. See 8 C.F.R. Section 208.4(a)(2)(ii). The Department of Justice, as a matter of policy, has requested that the one-year limitation become effective after April 1, 1998. Aliens and/or their representatives may be requesting expedited master calendar hearings in order to file an asylum application on or before the April 1, 1998 deadline. It should be noted that under OPPM 96- 1, an asylum application must be filed during a hearing before an Immigration Judge; it may not be filed at a window or by mail. It is necessary to continue this procedure in order to ensure that aliens are warned of the consequences of knowingly filing a frivolous asylum application.
1. Interim Procedure for Requests Before April 2, 1998
Before April 2, 1998, the Immigration Courts shall take the following steps to handle a possible influx of requests to file asylum applications before an Immigration Judge:
A. At Master Calendar Hearing, the Immigration Judge must determine if the alien intends to apply for asylum and, if so, schedule a Master Reset Hearing to file the application before the one-year deadline. If the alien refuses a date within the one-year deadline, the Immigration Judge should note on the record that the alien was advised of the deadline. The reset date shall be scheduled with the Immigration Judge before whom the case is currently pending.
B. Aliens who are in proceedings[1] who 1) have yet to appear for a scheduled hearing, or 2) have appeared for a scheduled hearing, but have not yet filed an asylum application, may request a Special Master Calendar Hearing[2] for the purpose of filing an asylum application. Any request for a Special Master Calendar Hearing shall be made at the Immigration Court with jurisdiction over the alien’s case. From March 23 through April 1, 1998, aliens may request a hearing by making a written request at the Immigration Court before 12:00 P.M. on the day they seek to file the application. If an Immigration Judge happens to be working at a detail site during this time period, he or she may accept an application pursuant to this memorandum. Otherwise, aliens are obligated to file an asylum application at the base court.
C. The courts will schedule Special Master Calendar cases with a “Duty Judge” from March 23 through April 1, 1998.
1. The Assistant Chief Immigration Judge (ACIJ) in coordination with the Court Administrator and the Liaison Judge shall designate “Duty Judges” and/or “Alternate Duty Judges” for the 8 work days before the filing deadline. Judges who operate in a one-judge court will obviously be the “Duty Judge” every day.
2. From March 23 through April 1, every court will hold Special Master Calendar Hearing, as necessary.
a. From March 23 through April 1, the Immigration Court shall set all requests for Special Master Calendar Hearings made before 12:00 P.M. on the schedule for that day. Any requests after 12:00 PM, shall be set for the next day. The Duty Judge shall have a maximum of 15 cases scheduled to begin at 3:00 P.M. If there are more than 15 requests for Special Master Calendar Hearings made before 12:00 P.M., the court shall schedule up to 15 cases with Alternate Duty Judge, as well. If the Court receives more requests than it can accommodate in one day, the court must contact its ACIJ about adding additional Duty Judges.
The Special Master Calendar Hearings are in addition to the schedule hearings for each day. Previously scheduled cases should not be continued, without the approval of the ACIJ. b. On March 31 and April 1, 1998, Detail Judges assigned to the Immigration Courts listed below, will hold Special Master Calendar Hearings during the morning and afternoon. Any requests for hearings made after 12:00 P.M. on Monday, March 30, 1998, shall be set on a Detail Judge’s calendar. As requests are made during March 31 and April 1, they may also be set on the Detail Judge’s calendar. Detail Judges will go to the following sites to assist with the Special Master Calendar Hearings:
Chicago
Los Angeles
Miami
New York City
Newark
San Francisco
c. On the last day, April 1, 1998, every alien who requests a Special Master Calendar Hearing prior to the 2:00 P.M. cut-off, shall be given the opportunity to file their application with a Duty Judge. The Duty Clerk must receive authorization from a Duty Judge to accept any requests for Special Master Calendar cases after 2:00 P.M.
D. The asylum application must be complete when filed. Submission of fingerprints at the time of filing is not required.
E. The clerk at the window shall give all requests for a Special Master Calendar Hearing to a clerk designated by the Court Administrator. That designated clerk shall set the calendar and retrieve the files. The designated clerk shall refer any language requests to the language coordinator, who will, if necessary, either hire a Berlitz interpreter or arrange interpretation through the AT&T Language Line. A designated clerk will also assist the Duty Judge during the hearings.
F. Duty Judge Responsibilities
1. The Duty Judge shall advise the aliens of the consequences of knowingly filing a frivolous application for asylum pursuant to INA Section 208(d)(4)(A).
2. During Special Master Calendar Hearings, Duty Judges shall hold a full Master Calendar Hearing on the record, if one has not already been held. If the alien requests a continuance to retain counsel, the Duty Judge should determine if the alien intends to seek asylum, and if so, whether the alien would be ineligible to file for asylum relief, absent extraordinary circumstances or changed circumstances, pursuant to 8 C.F.R. Section 208.4(a)(4) or (5). The Duty Judge should inform the alien about the one- year deadline. When the alien requests a continuance to find counsel, the Duty Judge must note on the record that the alien seeks a continuance to retain an attorney, and that such a continuance may preclude the alien from filing for asylum.
3. If the alien files an asylum application with no supporting documentation and seeks a continuance to supplement the application, the clock shall be stopped by entering code 21. Otherwise, the clock will continue, and the case must be adjudicated within 180 days.
4. At the conclusion of the Special Master Calendar Hearing, the Duty Judge shall set the case to the next Master Reset Calendar of the Immigration Judge last assigned to the case, so that Judge can schedule his or her own case for a merits hearing within the 180-day deadline.
G. Court Administrator Responsibilities
1. Help coordinate the Duty Judge Schedule. 2. Ensure that the alien is provided with the “Request for Special Master Calendar Hearing” form (see attached), and that the aliens seeking the opportunity to file their application, submit that request at the window.
3. Create a notice to give to the alien at the window, which indicates the courtroom and the time of the Special Master Calendar Hearing.
4. Assign a Duty Clerk(s) to accept the requests, retrieve the files, set the Special Master Calendar Hearings, and assist the Duty Judge at Special Master Calendar Hearings.
5. Assign a designated language specialist to coordinate the use of interpreters at Special Master Calendar Hearings.
6. Inform the Immigration and Naturalization Service of Special Master Calendar Hearings by providing them with a calendar of cases by 1:00 P.M. each day. On March 31 and April 1, 1998, the Court Administrator shall provide the INS with a calendar of cases, once it becomes available.
H. Duty Clerk Responsibilities
1. Check the ANSIR system to determine if the alien is properly before the court.
2. Schedule all requests for Special Master Calendar Hearings.
3. Retrieve and organize all Records of Proceedings (ROPs) for Special Master Calendar Hearings. Insert the Request for Special Master Calendar Hearing in the ROP.
4. Alert the designated language specialist of all requests for interpreters.
5. Organize cases on the calendar by groups, when possible, to expedite the proceedings (i.e., languages, those with representatives, those without representatives, etc.).
6. Assist the Judge during the Special Master Calendar Hearing by seeking Master Reset dates in the ANSIR system.
Over the next 3 weeks the Department of Justice will issue public service announcements which explain the April 1, 1998, deadline, and detail how to request a Special Master Calendar Hearing in order to file an application. Every Immigration Court will post information explaining how to request a Special Master Calendar Hearing.
II. Requests After April 1, 1998
Before April 1, 1998, the courts shall establish a permanent system to review asylum applications which need to be filed before the one-year deadline. The plan should be developed in consultation with ACIJ, and must be submitted in writing before April 1, 1998.
III. Old v. New Form I-589
It has come to our attention that some Immigration Courts are distributing and accepting the November 16, 1994 version of the Form I-589, Application for Asylum and for Withholding of Deportation. The latest version of the Form I-589 is dated April 1, 1997. This version includes a warning that unless there are exceptional or extraordinary circumstances, an asylum application must be filed within one year of arriving in the United Sates and contains a question which asks the alien whether he or she is filing the asylum application more than one year after their last arrival in the United States, and, if so, requests the alien to explain why he or she did not apply for asylum within one year after arrival in the United States. The April 1, 1997, version of the I-589 will include an attachment which explains the new fingerprint and one-year filing deadline requirements. The OCIJ will be ordering the April 1, 1997 version for the Immigration Courts, once the attachment is available. When you have the April 1, 1997 version of the Form I-589, you must throw away any other versions. Use only the April 1, 1997 version starting April 1, 1998. If your court needs more asylum forms than those sent to you by OCIJ, please make sure that you order them.
On or after April 1, 1998, if an alien files a 1994 version of the asylum applications, the court shall accept the application, but shall require that the alien supplement the application with the proper version. When this situation arises, the court shall stop the clock by entering code 21.
As a result of the changes in the fingerprinting process and other revisions to the Form I-589, a new version of the I-589 has been drafted and is expected to be printed and distributed in April or May. As of July 1, 1998, all requests for asylum must be submitted on the newest version of the Form I-589.
IV. Fingerprint Process
As noted in a previous memorandum on the 1998 Appropriations Act, dated December 4, 1997, the 1998 Department of Justice Appropriations Act does not permit the INS to accept fingerprint cards for the purpose of conducting criminal background checks unless prepared by the INS, registered state or local law enforcement agencies or U.S. consular or military offices abroad. This provision became effective for any filings made on or after December 3, 1997. For a period of time, persons applying for immigration benefits, other than naturalization must have had their fingerprints taken at a registered state or local law enforcement agency. The INS has been setting up Application Support Centers (ASCs) throughout the United States. The ACSs will be responsible for taking fingerprints for applicants for immigration benefits which require a fingerprint check. Under the new fingerprint system, as envisioned by the INS, applicants for immigration benefits, which require a fingerprint check, i.e., adjustment of status, cancellation of removal, naturalization and asylum, will file the application without a fingerprint card (FD 258). The ASC will, in turn, schedule the alien to appear for fingerprinting and verification of identity. The ASC will send the fingerprint to the FBI. According to the INS, their new system will be electronic and any responses from the FBI will be available electronically. The INS and EOIR have not agreed on procedures detailing how aliens applying for immigration benefits in proceedings will be fingerprinted. In addition, the INS will be promulgating an interim regulation in the near future to implement the new fingerprinting system.
Please take appropriate action with regard to Special Master Calendar Hearings immediately.
Michael J. Creppy
Chief Immigration Judge
cc: Deputy Chief Immigration Judges
Assistant Chief Immigration Judges
Michael Straus
Kathleen Dwinnells
FOOTNOTES:
[1] Jurisdiction vests and proceedings before an Immigration Judge commence, when a changing document is filed with the Immigration Court by the Service.” 8 C.FR. Section 3.14.
[2] For purposes of this memorandum, reference to a “Special Master Calendar Hearing” involves a request for a “rush asylum filing” hearing in order to avoid exceeding the one-year filing deadline in INS Section 208(a)(2)(B).
Attachment:
REQUEST FOR SPECIAL MASTER CALENDAR HEARING
1) Alien’s Name:
2) Alien’s A File Number:
3) Date of Scheduled Hearing, if any:
_________________
Date _________________
Alien’s Signature