New Word, Same Problems: Entry, Arrival, and the One-Year Deadline for Asylum Seekers

Abstract: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) imposed a one-year filing deadline on all applications for asylum. Under this law, an alien applying for asylum bears the burden of showing that he or she applied for asylum within one year of into the United States. The word is not defined in immigration law, but the Second Circuit recently held that not every border crossing into the country is an for purposes of the asylum filing deadline. The court's reasoning was reminiscent of the U.S. Supreme Court's 1963 decision in Rosenberg v. Fleuti, which held that a lawful permanent resident does not make an into the United States upon returning an innocent, casual, and brief trip abroad. This Comment examines the meaning of the word as used in the asylum filing deadline and argues that Congress has inadvertently created a new Fleuti debate over when travel outside the country is meaningfully interruptive of an asylum seeker's presence in the United States. It further argues that federal courts have jurisdiction to consider the proper meaning of the word in the one-year rule and should do so according to legislative intent, which was not to use the filing deadline to preclude legitimate refugees seeking asylum in the United States. Dinesh is Nepal.1 The son of a political activist, he lived in the United States 1999-2005. Almost immediately upon returning to Nepal in 2005, Dinesh was kidnapped and beaten by Maoist rebels who opposed his father's activities. They told Dinesh he would have to join the armed faction of their rebellion or be killed. In April of 2006, Dinesh escaped and fled to the United States. He was detained at the border, where he asked for asylum to stay in the United States. Although Dinesh filed his application for asylum within three months, Immigration and Customs Enforcement (ICE) claimed that Dinesh was ineligible because he did not seek asylum within one year of arrival, as required by law. ICE asserted that because Dinesh had lived in the United States previously, his return in 2006 was not an under the asylum law. Instead, ICE contended Dinesh would have needed to apply within one year of his 1999 entry to be eligible for asylum. Under United States law, an alien2 seeking asylum in this country has one year the date of to file an application for asylum with the United States Citizenship and Immigration Service (USCIS).3 Federal regulations clarify that the one-year deadline is calculated from the date of the alien's in the United States.4 However, the word is not defined in the one-year rule for asylum applications or elsewhere in the Immigration and Nationality Act (INA), the main body of U.S. immigration law.5 The Court of Appeals for the Second Circuit, the only federal court of appeals to squarely address the issue thus far, has concluded that not every border crossing is an for purposes of the one-year deadline.6 The court held that an asylum applicant who had resided in the United States for nearly a decade did not arrive in the United States when he returned a three-week visit to his home country taken pursuant to a grant of advance parole by immigration authorities.7 In a subsequent, unpublished decision, the Second Circuit noted with approval an Immigration Judge's decision to disregard an asylum applicant's claimed last arrival date when calculating the one-year deadline because the alleged followed a brief trip to Canada rather than a flight persecution.8 Congress imposed the filing deadline on asylum applications as part of the sweeping Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).9 IIRIRA also stripped the federal courts of jurisdiction to review claims relating to the timeliness of an asylum application.10 Congress intended the deadline to prevent aliens asserting frivolous asylum claims as a defense after deportation proceedings had been commenced against them, or otherwise misusing the asylum system. …

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