Asylum After One Year Deadline: Navigating U.S. Law

January 2015

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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“Be the change that you wish to see in the world.”
― Mahatma Gandhi

Changed Country Conditions: Filing Asylum After One Year Deadline

Author: New York Asylum Attorney Alena Shautsova

Changed Country Conditions: Filing Asylum After One Year Deadline

Under the current law, a person seeking asylum must file his/her claim within one year of entering the US. An entry to the U.S. can be verified by evidence of inspection and admission; documents proving that the undocumented person was stopped at the border or by presenting a detailed affidavit describing the circumstances and a way of entry (in case if a person did not enter the county ‘legally’).

However, it is not uncommon that a person misses the deadline for filing of asylum application. In this situation, It is still possible to file for asylum if certain exceptions apply. See: http://www.shautsova.com/law-publications/file-asylum-application-after-deadline.html#.VKhexCvF818

One of the reason the US government can excuse the late filing, is when the country conditions in the country the person claiming asylum form have changed so that now a person may present a valid asylum claim. In other words, person’seligibility for asylum “renewed” from the time the conditions in the country changed. Sometimes, it is not that easy to prove that country conditions have changed.

The change of conditions must be material and significant from the time when the applicant was supposed to file for asylum on the first place. The changed country conditions exception can apply even if the relevant circumstances do not create a new basis for asylum but simply provide further evidence of the type of persecution already suffered. Singh v. Holder, 656 F. 3d 1047, 1053-54 ((th Cir, 2011). Sometimes, it is worsen situation with the human rights; sometimes it is a totally new regime in the country; sometimes the government of the country starts a persecution complain against persons practicing certain religion…

For example, in the recent decision, Board of Immigration Appeals recognized changed country conditions in Ukraine when granted person’s motion to reopen the removal proceedings and allowed the person to present his asylum claim: BIA Decision, October 30, 2014. (Please link it)

Please note that a person has to apply for asylum or file a motion to reopen without delays after the conditions in the country has changed. Usually, six months beyond the changed circumstances would not be presumptively reasonable.

How much evidence an applicant has to put forward to prove changed country conditions? Many “showings” in Immigration court must be done by clear and convincing evidence. But this particular one, the demonstration of the changed country conditions does not need to comply with this standard. If the applicant presents sufficient evidence of the changed country conditions to the Immigration Judge satisfaction, the exception can be applied. 8 CFR §1208.4(a)(2)(i)(B).

This exception can save someone’s asylum claim and help one to stay in the U.S. legally. Therefore, it is important to consult with an attorney in each case of possible asylum claim, even if the filing deadline has been missed.

TPS as Basis for Adjustment of Status

Author: Green Card Attorney Alena Shautsova

TPS as Basis for Adjustment of Status

Temporary Protected Status (“TPS”) allows a person to stay in the US legally and work because the conditions in the person’s country are so unfortunate that the US government allows a person not to return there.

The current list of countries designated for TPS can be found at USCIS website: http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status.

For example, countries like El Salvador, Liberia, Honduras are designated for TPS. However, a person from the TPS designated country, still has to meet certain deadlines and conditions in order to qualify for TPS. The main advantages of the TPS status are work authorization (a person with TPS status can legally work in the US) and advance parole (a TPS holder may apply for permission to travel internationally).

Significantly, a person can qualify for TPS even if he/she entered the country without inspection or by “crossing the border.” The benefit of advance parole is particularly important: once a person travels using the advance parole document and gets paroled back to the US, he/she is no longer an entrant without admission and inspection, somebody who was allowed to the country legally and now can, if there is a basis for it, apply for adjustment of status or green card. Let’ssay Martha is from El Salvador and she is a holder of TPS status. Many years ago she came to the US and has been renewing her status. She married a US citizen, but could not successfully get a green card because she came to the US through US/Mexican border without a visa. If Martha travels internationally using an advance parole, she will be able to get her green card in the US when her spouse files for her.

There is another situation, however: what if Martha never uses advance parole; she is a holder of TPS status, and her US citizen spouse files for her. Can she, even though she came to the US by crossing the border, get a green card?

The answer is: maybe. It depends on where Martha will be filing for the adjustment of status. Currently, the 6^th, and Federal Court for the Eastern District of Pennsylvania held that YES, a person holding TPS status holds a legal status in the US and can adjust (or get a green card) without a need to leave the US using an advance parole. See  Flores v. USCIS, (June 4, 2013 6th Cir) (LINK: http://www.russianspeakinglawyerny.com/tps-holders-may-adjust-their-status-to-lpr-says-6th-circuit/) and Medina v. Beers ( ED Pa 2014). Hopefully, that the USCIS will adopt the holdings of these decisions and allow persons with TPS to apply for permanent residence on a country wide basis.

How To Immigrate to the Unites States

Author: US Immigration lawyer Alena Shautsova

One of the most common questions I receive through my website is “How can I move to the U.S.?” There is no simple answer to this question. The U.S. Immigration law provides for certain channels of immigration, plus the individual’s circumstances such as education, family ties, financial ability should be taken into consideration in order to determine a possible immigration solution. In addition, past immigration and criminal history (such as attempts to receive a U.S. visa, deportation, criminal charges in any country of the world) must be analyzed before a competent advice can be rendered.

It is possible, however, to outline the most common ways a person can utilize to receive permanent residency in the U.S.: please see: http://www.shautsova.com/immigration-applications/how-immigrate-usa.html .