How Long Does an Immigrant to Florida Have to Seek Asylum?

Any immigrant, even if they entered the country unlawfully, has the right to apply for asylum in the United States. Asylum allows an immigrant to remain in the United States legally if they are unable or unwilling to return to their country of origin due to a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Member of a “particular social group” can include individuals who share certain immutable characteristics, such as individuals who identify as part of the LGBTQ community and face persecution in their homelands.

A Strict One-Year Deadline

A legal or illegal immigrant currently residing in Florida can file an Application for Asylum and for Withholding of Removal, also known as a Form I-589, with U.S. Citizenship and Immigration Services (USCIS). Critically, this application must be filed within 1 year of the immigrant’s most recent arrival in the United States. This is a hard deadline. The Attorney General of the United States has the discretion–but no obligation–to consider a Form I-589 filed after the one-year deadline if there are “changed circumstances which materially affect the applicant’s eligibility for asylum” or other “extraordinary circumstances” that prevented an immigrant from making a timely application.

Under current policy, the Attorney General has said he will consider a late application only if the applicant filed “within a reasonable period.” What is “reasonable” is determined on a case-by-case basis. Notably, the Attorney General’s discretion in such matters is generally not subject to any sort of judicial review.

In other words, if you apply for asylum more than one year after you last entered the United States, it is entirely up to the Attorney General–or, in practice, the Board of Immigration Appeals (BIA)–to decide whether to allow a late filing. The BIA is not a court. It is an administrative body within the Department of Justice that acts under the Attorney General’s authority.

A recent decision from the United States Court of Appeals for the 11th Circuit, which has federal appellate jurisdiction over Florida, illustrates the constraints on judicial review in these matters. In this case, APA v. Attorney General, a Mexican citizen who is a transgender woman filed a late application for asylum based on her transgender status. The BIA determined that the applicant failed to demonstrate any changed or extraordinary circumstances justifying her late filing. The 11th Circuit subsequently held it lacked jurisdiction to review the BIA’s decision. Ultimately, whether or not to permit a late application for asylum was a matter of “discretion” by the Attorney General, the Court held. It was not a question of law subject to judicial review.

Contact a Tampa Asylum Attorney Today

Dealing with the American immigration system is not easy. There are a number of complex rules and procedures that must be strictly followed. It is therefore imperative that you work with an experienced Tampa asylum attorney who can guide you through the process. Contact Florida Law Advisers, P.A., today to schedule a free consultation.