Victim of Abuse, Domestic Violence, and Gang Threats Overcomes One-Year Filing Deadline and Granted Defensive Asylum by an Immigration Judge
Defensive asylum claims are filed in the Immigration Court as a defense to removal. This means that an immigrant has been placed in removal proceedings and that an Immigrant Judge will determine if they should be deported or granted some form of relief that will allow them to remain in the United States. The requirements for defensive asylum are the same as they are for an affirmative asylum claim that is filed directly with the asylum office – the applicant must demonstrate that they suffered persecution or fear that they will suffer future persecution on account of one of the five protected grounds : race, religion, nationality, political opinion, or membership in a particular social group.
One of the major difficulties that arise with defensive asylum claims is the one-year filing deadline. There are certain statutory bars (mandatory bars) to a grant of asylum, including that applicants for asylum must apply within the first year of their arrival in the United States, otherwise the application may be denied, even if the fear claim meets one or more of the above-mentioned requirements. Unfortunately, a lack of knowledge of the process, fear of immigration authorities and possible removal, language barrier, and often finances preventing many immigrants from complying with this requirement. A vast number of immigrants do not apply for asylum affirmatively for one or more of these reasons. Many are not identified by immigration authorities and placed into removal proceedings until they have already been in the US for more than a year, often many years later. If this happens it is a challenge to prove that the applicant qualifies for an exception to the one-year filing deadline due to a material change in circumstances affecting the applicants eligibility for asylum or where extraordinary circumstances exist. We successfully argued this exception recently for one of our clients – Ms. RA.
It has been a long journey for Ms. RA. After years of abuse, fear, and uncertainty, she was recently granted asylum by an Immigration Judge. Ms. RA suffered abuse as a child in Honduras, followed by years of brutal domestic violence at the hands of her ex-partner and the father of her child. Fearing further abuse and death she fled to the US At the time of her entry she was a minor and pregnant, poor and scared. She was apprehended by immigration authorities upon entering the US and was placed in removal proceedings. However, due to her young age and circumstances she did not appear at her scheduled hearing and was ordered removed in her absence. Years later she was detained by immigration authorities again. Our attorneys filed a Motion to Reopen her removal proceedings, which was granted by an Immigration Judge,
Once the removal dates were reopened, Ms. RA filed for asylum as a relief from removal. Her asylum claim was based on the domestic abuse she had suffered and the fear of future persecution at the hands of her ex-partner if she were to return to Honduras. However, this asylum application was filed six years after her initial entry to the US – far beyond the one-year filing deadline. Soon after filing, another threat arose for her and her family. One of the notorious gangs in Honduras had targeted her brother and in their attempt to get to him they killed our client’s mother, one of her brother’s friends, and threatened several members of the family. We argued that the unfortunate murder of her mother and possible threats qualified as a material change in circumstances affecting her eligibility for asylum, as it occurred within one year of the filing of her asylum application, and that it constituted extraordinary circumstances. The government agreed and the Immigration Judge granted our client asylum.
After years of uncertainty, she is now assured that she will not be removed to Honduras, where her life would be in danger. She may remain in the US in valid asylee status and will be able to seek permanent residency and citizenship in the future. She will be able to raise her US Citizen children without fear of being separated from them and can even bring her oldest child to the US after already being separated for years and fearing his safety. We are thrilled that we could help her in this process and look forward to continuing to help her achieve her American dream.
Disclaimer: Every legal matter is different. The outcome of each legal case depends upon many factors, including the facts of the case, and no attorney can guarantee a positive result in any particular case. Any testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. Prior results do not guarantee a similar outcome.