The law of asylum requires applicants to file their form I-589 within one year of arriving in the United States; otherwise, their case can be denied as untimely. There are exceptions to the one-year filing rule, and if you are relying on one of those, you would normally include that information in the I-589 at the time of filing.

However, it is also possible to qualify for an exception to the one-year bar after you file for asylum. I recently employed some nifty case law to help a client overcome the one-year bar and win asylum, and I imagine that other late filers might benefit from this client's experience.

In my case, the client was a police trainee from Honduras. He was threatened and attacked by gang members, causing him to quit the police and flee his country. He arrived in the United States in 2006. He failed to file for asylum within his first year here, but in 2010, he had a minor scrape with the law that landed him in Immigration Court. We filed for asylum that same year. To overcome the one-year bar, we argued that the client was traumatized by his experience in Honduras and did not file earlier because he feared he would be deported. This was the only excuse we could come up with, but it was weak and I was not optimistic it would be accepted.

For various reasons, the Immigration Court delayed the case several times, and the Individual Hearing was finally scheduled for May 2024. Over the course of the intervening 14 years (!), my client came out as gay and later married his long-time boyfriend. I was happy for this development. In part because I love love, but mostly because it made the case a lot stronger. The original claim (police trainee threatened by gang members) would have been difficult to win, but an LGBT case from Central America--especially where the client is married--is a much better claim. So substantively, the changed circumstances improved our case, but what about the one-year bar?

While there is no published case directly on point, a couple unpublished decisions provided helpful guidance about my client's "changed circumstances." First is Matter of G-A-H-, XXX-XXX-097 (BIA July 27, 2020), which involved a Colombian asylum seeker who failed to file for asylum within one year of arrival. The Immigration Judge denied asylum, and while the case was on appeal to the Board of Immigration Appeals ("BIA"), the applicant came out as gay and filed a motion to remand based on these changed circumstances (in a motion to remand, the asylum seeker asks the BIA to return the case to the Immigration Judge to consider new facts). The Board found that while the applicant “has been aware of his homosexuality for some time, he suppressed these feelings for many decades” due to “egodystonic sexual orientation,” “which prevented him from disclosing his homosexual orientation.” In other words, the asylum seeker was afraid to "come out," and this prevented him from making a sexual-orientation asylum claim at an earlier time.After he came out and revealed his orientation, he filed a motion to remand based on changed circumstances.The BIA concluded that he had demonstrated changed circumstances materially affecting his eligibility for asylum pursuant to 8 C.F.R. §§ 1208.4(a)(4)(i)(B) & (ii). As such, the case was remanded to the Immigration Judge to examine the substance of the asylum claim.

A second helpful case for us was Ordonez-Azmen v. Barr, 17-982-AG (2nd Cir. 2020). There, the U.S. Court of Appeals for the Second Circuit found that INA § 208(a)(2)(D) “permits the agency to consider an asylum application that is otherwise untimely... based on changed circumstances that occur after the application is filed” (emphasis added). The court held that, when it passed the INA (the Immigration and Nationality Act), "Congress did not intend to bar the agency from considering the asylum application of an applicant who shows changed circumstances that first arise after the application is filed, and did not require that the changed circumstances even relate to the delay in filing.” “To the contrary, Congress clearly contemplated that the agency could consider a change in circumstances... at several stages in an applicant’s proceedings—even when the change bears no relation to the reason for the delay, and even as late as a motion to reopen a final order of removal.” “The BIA’s own regulations and decisions confirm our view that changed circumstances do not need to relate to the delay in filing and instead need only ‘materially affect’ eligibility for asylum.” Further, in In re C-W-L-, 24 I&N Dec. 346, 353 (BIA 2007), the BIA construed INA § 208(a)(2)(D) and related regulations to "permit an updated asylum application based on changed circumstances ‘at any time during proceedings before the entry of a final order of removal or within the 90-day deadline for a motion to reopen.’” “This rule would include a change that arises, as here, while an asylum application is pending.”

All this basically means that if a person files late for asylum, but then some changed circumstances arise while the asylum case is pending, the person can amend their asylum case to request protection based on the changed circumstances, and that the application--at least as far as the new claim is concerned--would now be consider timely.

Whether the original claim would also be considered timely is not discussed. Also not discussed is whether the new claim, based on changed circumstances, needs to be filed within a "reasonable time" after the change (for a new asylum filing, in order to overcome the one-year bar based on changed circumstances, the application would need to be filed within a "reasonable time" after the change; whether that applies in the situation discussed here is not clear). Although the law is not settled on these points, certainly if there are changed circumstances while your case is pending, you would want to file the new claim as soon as possible.

In our Honduran case, the applicant came out as gay (at least to some friends) in about 2015. He married in early 2024, and we filed the new asylum claim a few months later. We did not file a new I-589 form (though we could have). Instead, we filed updates to the pending application. I was worried that we did not file within a reasonable time after my client came out as gay, but certainly, he had filed within a reasonable time of his marriage, and so we relied on the same-sex marriage as the "changed circumstance" which would excuse his late filing (as this created a new basis for asylum--persecution based on his marriage to a man).

In the end, it all worked out for my client--both the Immigration Judge and the DHS attorney accepted our argument about the one-year bar, and asylum was granted. The lesson, I think, is that even if you feel you do not have a good basis to overcome the one-year bar, circumstances might change during the course of your case, and perhaps that will open a new path to asylum.

Originally posted on the Asylumist: www.Asylumist.com