|Last updated April 23, 2007|
Section 208(a)(3) of the INA says that courts may not review determinations relating to the one year filing deadline for asylum applications. Despite this provision, some important exceptions to this general rule have been carved out. This Litigation Issue Page highlights cases in which the courts have addressed their jurisdiction to review one year filing deadline decisions.
Recent Decisions Regarding Jurisdiction to Review One Year Filing Decisions
The INA requires asylum applicants to file their applications within one year after their arrival in the United States. INA § 208(a)(2)(B). Applicants are excused of this requirement if they can show: 1) "changed circumstances which materially affect the applicant's eligibility for asylum," or 2) "extraordinary circumstances relating to the delay in filing the application." INA § 208(a)(2)(D).
The INA says that courts may not review determinations relating to the one year filing deadline for asylum applications, INA § 208(a)(3). Many courts have applied this bar without a careful analysis of its scope or its relationship to other provisions. However, some important exceptions to this general rule have been carved out. As a result, some BIA determinations regarding the one year deadline and its exceptions are reviewable by the courts of appeals in a petition for review. Section 242(a)(2)(D), added to the INA by the REAL ID Act of 2005, provides courts with jurisdiction over all constitutional claims or questions of law notwithstanding other restrictions on review in the INA. The following cases demonstrate the distinctions the courts make between cases involving legal or constitutional claims and those that do not.
Note: Courts also retain jurisdiction to review applications for withholding of removal and CAT relief, even if the courts lack jurisdiction over the asylum claim
Legal Determination Regarding the Timeliness of the Application
When the BIA's determination turns on its interpretation of the statute or the regulations, courts have found that they have jurisdiction to review the determinations regarding whether the application was filed within one year.
Due Process Violations
Courts have found that they have jurisdiction to review whether the BIA's evaluation of the one year deadline violates due process.
In two pre-REAL ID Act cases, the courts similarly found jurisdiction to review whether the BIA failed to evaluate whether the applicant met the one year deadline or qualified for an exception.
Purely Factual Determinations
One court has found that when an "IJ's unambiguous mischaracterization of the record raises a question of law," the court has jurisdiction to review the BIA's finding regarding the date the applicant arrived in the United States. Liu v. INS, 475 F.3d 135 (2d Cir. 2006).
However, the courts have held that they lack jurisdiction to review purely factual determinations regarding the one year filing deadline.
Mehilli v. Gonzales, 433 F.3d 86 (1st Cir. 2006)
Application of Law to Fact
"Questions of law," as employed by INA § 242(a)(2)(D), include the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law. The courts, however, are divided as to whether the changed or extraordinary circumstances exceptions to the one year filing deadline can constitute mixed questions of fact and law that are reviewable.
The Ninth Circuit has offered the broadest interpretation of mixed question of fact and law in the one year filing deadline context.
Other courts have declined to review the BIA's findings regarding extraordinary or changed circumstances.
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