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ASYLUM / APPEAL TIMELINES / DEADLINES
Oleh: Bill Kadarusman
 For someone who want to apply for political asylum and appeal their case to the BIA and the
Circuit Court. There are timelines and deadlines for which you must file
your application or appeal to avoid dire consequences of denial, rejection,
and worst of all, deportation.
Here are a few timelines / deadlines that you need to watch out very
carefully:
One year time bar in applying for asylum - the time starts to run (this
means the clock starts ticking) after arrival to U.S. Many people think that
one year starts to run from the time they become "out-of-status." One year
after arrival, not one year after your visiting visa expired. For example,
if you arrive on June 1, 2006, you have until June 1, 2007 to file your
asylum application, no matter how you came to U.S. i.e. B-1/B-2 visa, F-1
student, H-1B professional visa, or other visa categories.
Exceptions to the one-year rule: there are only 2 exceptions to this rule,
which one must explain why their asylum application is not filed one year
after his or her arrival in order for the immigration office to accept his
or her application. One is substantial change in country situation /
condition, and the other is change in (individual) circumstances.
A good example of the substantial change in country condition is the recent
revolution in East Timor demanding Pres Alkatiri to resign, the people's
movement in Nepal, or the violent turmoil in Haiti. In almost all of these
cases, someone can still apply for asylum even though they came to U.S. many
years ago, or even if their old asylum has been denied, in which case they
can reopen their case.
The other exception deals with one's own circumstances. For example, if
someone is pregnant at the time she arrives in the U.S., she cannot apply
for asylum within one year of her arrival. Another example is illness,
anxiety, or depression. All those can be good excuse for not filling for
asylum one year after arrival.
Many people might say "but I don't know about asylum." This excuse will not
work. In order to say "I don't know ..." one must prove that he or she does
not have any friend, hardly talk to anybody, or is restricted to go out. If
you have friends or can go to church or school, it's very hard to prove "but
I don't know about asylum."
Appeal to BIA - 30 days after final order of deportation. BIA is strict
about this 30-day rule, no exception. You must file your appeal and your
appeal must be received at the clerk's desk no longer than 30 days after
your final order of deportation. The final order is issued when the judge
signs the order of deportation. The judge can sign this order orally after
formal hearing or in writing.
Once you miss this 30-day deadline, you cannot file appeal anymore. The door
is shut, period. If you are still in the U.S. after the 30-day deadline,
arrest warrant will be automatically issued and if you are found by state
police or federal agent, there will be no more hearing to jail and deport
you. It is possible, however, to reapply for a new asylum application if
there's a substantial change in country situation.
I will not talk about motion to reopen at this time.
Appeal to Circuit Court - 30-day or 60-day after final BIA order. Depending
on where you live, some circuit courts give 30 days to file an appeal, while
others give 60 days. This is another draconian rule, a very strict rule,
almost no exception. Few exceptions are if you are in jail or if you have
never received the final notice from BIA.
A lot of people especially if they are not represented by a lawyer have told
me that they had never received the notice from BIA. It is true if they have
never received the notice, how will they know when to appeal timely. BIA
often argues that they have mailed the letter, and indeed they almost always
have a copy of the final notice showing the name and address of the
appellee. Perhaps, the appellee has not received the final notice because
the US Postal Service lost the mail, perhaps the individual has moved
address, or maybe for other unknown reason.
Most circuit courts are inclined to agree with BIA in postal service error
cases. If an individual claims he or she has never received the final
notice, but indeed BIA has sent out the notice, and the postal service lost
the mail, most circuit courts now say that the notice is valid, and 30 days
or 60 days start to run when that final notice is signed and sent out.
There is also a toll free number to check your BIA case. The number is
1-800-898-7180.
My recommendation for you in this case when you need to appeal your case to
BIA is to immediately hire an attorney (it does not have to be me). You can
hire any attorney you can trust. It's important that you keep all these
timelines and deadlines to avoid dire consequences of rejection, denial or
even deportation.
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