Apply for Asylum

Yes. When you first apply for asylum, you may also petition for your spouse and any children who are under the age of 21 and are unmarried. Please note that you may only petition for family members where the relationship existed before you were granted Asylum. In cases of newborn children, that child had to be conceived or born before you entered the U.S. as a refugee or was granted asylum. Form I-730, Refugee/Asylee Relative Petition, will have to be filed by your eligible family member.

The first exception is for changed circumstances.  If you have missed the one-year deadline and can demonstrate “the existence of changed circumstances which materially affect” your eligibility for asylum, then you may still be able to apply for asylum.  You would need to show that something has changed since the time of your last arrival in the U.S that placed you in fear of returning back to your home country. Applications submitted under this exception must be made within a reasonable period. A reasonable period of time may be determined by taking into account whether you had a delayed awareness of the occurrence of changed circumstances.

Situations that constitute changed circumstances are as follows:

• Change in condition of your country of nationality, or if you are stateless then the country of your last habitual residence; or
• Material change in your circumstances that affect your eligibility for asylum, including changes in applicable U.S. law and activities that you become involved in outside the country of feared persecutions that placed you at risk; or
• If you were previously included as a dependent in another applicant’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or turning 21 years old.

There are specific categories of changes that warrant an exception to the one-year filing requirement and are as follows:

• Change in Country Conditions. If a country changes it’s laws, such as the criminalization of same-sex sexual activity or change in policy where the government will enforce anti-sodomy laws to be enforced, then a member of the LGBT community may now be eligible for asylum.  Furthermore, a change in government to a repressive homophobic regime, may also warrant an exception.  To obtain this exception, you must show that this change in country conditions has a particular impact on your individual case.

• Change in Applicant’s Circumstances. Certain circumstances may materially affect your eligibility for asylum based on sexual orientation.  Such circumstances may include: coming out as a gay man or lesbian, becoming active in the LGBT community, or a diagnosis of HIV.  Winning an asylum application solely on HIV-positive status is difficult, however, cases are more successful when based on both sexual orientation and HIV-positive status.  You may qualify for an exception if there is severe discrimination or persecution of those with HIV in your native country if you have recently been diagnosed as HIV-positive.  Transgender people in the process of transitioning may qualify for a changed circumstances exception where: he/she has taken medical steps to transition including hormone therapy, electrolysis, or sex reassignment surgery, where you believe it will increase the risk of persecution in your home country.

• Extraordinary Circumstances. Extraordinary circumstances refer to “events or factors directly related to the failure to meet the one-year deadline.”  This means that you must demonstrate that something prevented you from filing up until now and these circumstances were not created through your own action or inaction.  When reviewing your application, the asylum adjudicator will analyze the individual facts of your case to determine if extraordinary circumstances exist.  You will need to establish the following three requirements:

1. Demonstrate the existence or occurrence of the extraordinary circumstances;
2. Show that the circumstances directly relate to the failure to file an application within the one-year period; and
3. Demonstrate the delay in filing was reasonable under the circumstances.

Below are some examples of extraordinary circumstances:

1. Serious Illness or mental or physical disability, including an effects of persecution or violent harm suffered in the past during the one-year period after arrival; or
2. Legal disability during the one-year period after arrival (i.e. you are an unaccompanied minor or suffer from a mental disability);
3. Ineffective assistance of counsel;
4. You have maintained Temporary Protected Status (TPS), lawful immigrant or nonimmigrant status, or were given parole, until a reasonable period before filing the asylum application; or
5. You filed an asylum application within one year of your arrival, but that application was rejected by USCIS as not properly filed, was returned to you for corrections, and was re-filed within a reasonable time after; or
6. Your legal representative or a member of your immediate family dies or suffers a serious illness or incapacity.

• Serious Mental Illness or Mental/Physical Disability. If you suffer from a serious illness or mental or physical disability during the one-year period, you will be excused for an untimely filing.  Post Traumatic Stress Disorder (PTSD) has been recognized by one circuit court as an extraordinary circumstance.  LGBT applicants in particular may suffer from PTSD or other forms of physical or mental trauma as a result of persecution in their native countries.  Furthermore, if the country has greatly stigmatized homosexuality, those applicants may have trouble accepting their own sexual orientation, which may lead to depression.

This exception is greatly overused and for this reason, applicants must use testimony of psychiatrists or therapists to demonstrate that you suffer from PTSD, depression, or another serious illness or disability.  If you have an ongoing relationship with the medical health professional, then the testimony will be considered more credible then just one evaluation for the application.

Many applicants settle in communities mainly populated by people from his/her native country where LGBT applicants may be ostracized.  For that reason, these particular applicants, as well as those or are HIV-positive, may have difficulty discussing their sexual orientation, gender identity, or HIV-positive status.  As such, these pressures may not constitute a mental disability specifically, however, the Asylum Officer’s Manual states that severe family or spousal opposition, extreme isolation within a refugee community, profound language barriers, or profound difficulties in cultural acclimatization may also constitute extraordinary circumstances.

Those who are HIV-positive will find the disability category to be particularly relevant.  Severe illness or severe depression resulting from being diagnosed with HIV may keep an applicant from being able to apply for asylum within one year of arriving in the U.S.

• Legal Disability. Legal disability may excuse unaccompanied minors from failing to meet the one-year filing deadline so long as the legal disability occurred during the one-year period.  This argument could potentially extend to accompanied minors, specifically those that are LGBT who may have been afraid to inform their families of the sexual orientation and cannot reasonably pursue their asylum claims until after leaving their families.  An “unaccompanied minor” for purposes of the one-year deadline is a child under the age of 18 in the U.S. without a parent or legal guardian.

• Ineffective Assistance of Counsel. If you intend to pursue an exception for ineffective counsel, you must satisfy three requirements:

1. Affidavit testifying the details of the agreement with the attorney must be filed;
2. The attorney must be informed of the complaint and given an opportunity to respond; and
3. A complaint must be filed or you must explain why you have not filed a complaint with the relevant authorities.

The asylum adjudication must determine only whether these three requirements were met and evaluate whether the counsel’s actions or inactions were related to the delay in filing.

A viable claim for ineffective assistance of counsel can be shown if you met with an attorney before the filing deadline and the attorney never informed you of the different grounds on which you may claim asylum including: sexual orientation, gender identity, of HIV status.  This claim would be difficult if the applicant never raised these issues on his own.  A more successful claim would be if an attorney filed an application within one year, but it was not properly prepared and lacked sufficient documentation to support the claims.  Also, failure to advise an applicant of the one-year deadline when assistance is sought, may also be a successful claim for ineffective counsel.

• Maintenance of Lawful Status. If you file for asylum within a reasonable period after your TPS or lawful immigrant or nonimmigrant status ends, you may be eligible for an exception.  The facts surrounding your case will be used to determine whether your application was filed within a reasonable period of time.  Waiting six months after the lawful status ended until filing for asylum was found to be unreasonable by the Department of Justice.  LGBT applicants who “come out” while studying in the U.S. and applicants who learn they are HIV-positive while working or studying here benefit greatly from this exception.  LGBT students may be forced to file for asylum upon informing their families of their sexual orientation, gender identity, or HIV-status if their parents stop paying for school.

• Improperly Filed Application Within One-Year Period. If you file your application within the one-year filing deadline, but it was rejected, returned for corrections, and re-filed within a reasonable period of time, you are eligible for this exception.

• Death or Serious Illness of Legal Representative or Family Member. To determine if this exception applies, the asylum adjudicator will consider “the degree of interaction between family members, as well as the blood relationship between the applicant and the family member.” Given the recent repeal of the Defense of Marriage Act, same-sex partners are also recognized for the purposes of this exception.

• Other Circumstances. Asylum officers may also consider other circumstances such as:

1. Severe family or spousal opposition;
2. Extreme isolation within a refugee community;
3. Profound language barriers; or
4. Profound difficulties in cultural acclimatization.

Particularly for those within the LGBT community who are afraid of how their communities and families will react to their sexual orientation, gender identity, or HIV-positive status, this exception is relevant.  These applicants may be afraid to seek medical assistance or therapy in their own communities due to fear and are unable to seek such assistance outside of the community due to language barriers.  Lack of awareness generally is not considered an exception to the one-year filing rule, however, it may be justified in situations involving isolation within a refugee community, community and family stigmatization of homosexuality and fear of discussing such personal issues because of past physical trauma.

Yes. You may apply after one year of arrival if the delay of filing of your asylum application was caused by a change of circumstances. The circumstances that prevented you from the timely filing must be either extraordinary in nature or must have triggered a change in your country’s condition to the worse. If true, you still have file the asylum application within a reasonable period of time after you’ve found out about the change.