Fraud by Immigration Consultant May Toll Deadline for Asylum Cases

Viridiana v. Holder (7/20/2011)

One of the things to keep in mind about filing for asylum in the U.S. is the one year deadline. That is, an asylum application must be filed within one year of entering the country. Applications filed late, even if they are meritorious, will not be considered. One year may seem like a long time, but filing a well documented and researched application takes a lot of work. Also, many asylum applicants may not even be aware of the deadline until it is too late. It is very easy to let the deadline pass, as evidenced by the large number asylum cases which are appealed on account of the one year deadline issue.

Luckily, there is a saving clause in the regulations for the one year deadline. A late filing may be excused if the tardiness was due to “extraordinary circumstances.” The regulations recite factors in which extraordinary circumstances may be established, but the list is not exhaustive. Therefore, the courts are free to consider factors which may not be contemplated by the regulations, but which may nevertheless constitute extraordinary circumstances which would excuse a late asylum application. The 9th Circuit Court of Appeals ruled that fraud by an immigration consultant may be considered extraordinary circumstances which would toll the one year deadline to file an asylum application.

The applicant in this case was a Indonesian citizen of Chinese descent. She came to the U.S. on a visitor visa. She wished to file an asylum application because she felt that she was being singled out for mistreatment in Indonesia because she was ethnic Chinese. She enlisted the assistance of an immigration consultant. She knew that the consultant was not an attorney, but trusted him because he held himself out to be an expert on asylum cases. He spoke Indonesian and was a court certified translator, which further cemented her trust of the consultant. She paid him $1300 to file an asylum application on her behalf. She regularly kept in contact with him to ensure that the work was being done. He never followed through with her and repeatedly ignored her attempts to meet with him. Despite being specifically hired to file an asylum application, he did not do so and instead, filed an extension of her visitor visa that USCIS denied.

The applicant eventually hired a real attorney, who did prepare and file an asylum application for her. However, by the time the application was filed, the one year deadline had already lapsed by three months. The immigration judge denied her application without examining its merits because she failed to file it on time. The BIA rejected her appeal. Fortunately for the application, her appeal found a receptive forum with the 9th Circuit. The court found that fraud by an immigration consultant is an extraordinary circumstance which could excuse a late filing. The applicant relied on the assurances of an immigration consultant to her detriment. She did not ignore her case. She merely entrusted it to the wrong individual, someone who claimed to have expertise on filing asylum applications.

The court’s decision is an important victory for many asylum applicants, because the applicant’s scenario is too common. Many persons who file for asylum are regularly duped by immigration consultants who use their community or language ties to gain their victims’ trust. This case offers a hope for such persons because in the past, their case would be foreclosed by a late filing, but now, there is a chance to revive it. It is important to note that only licensed attorneys may appear in immigration court, where most asylum applications are adjudicated. Therefore, it is always advisable to hire an attorney to file an asylum application.

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