Cite as
23 I&N Dec. 286 (BIA 2002) Interim Decision #3465
In re Y-C-, Respondent
Decided March 11, 2002
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An unaccompanied minor who was in the custody of the Immigration and Naturalization
Service pending removal proceedings during the 1-year period following his arrival in the
United States established extraordinary circumstances that excused his failure to file an asylum
application within 1 year after the date of his arrival.
Pro se
BEFORE: Board En Banc: SCHMIDT, HOLMES, HURWITZ, VILLAGELIU,
GUENDELSBERGER, ROSENBERG, GRANT, MOSCATO, MILLER,
BRENNAN, ESPENOZA, OSUNA, and OHLSON, Board Members.
Concurring Opinion: FILPPU, Board Member, joined by SCIALABBA, Acting
Chairman; DUNNE, Vice Chairman; COLE, HESS, and PAULEY, Board
Members.
GRANT, Board Member:
The respondent has appealed from the decision of an Immigration Judge
dated May 15, 2000, denying his application for asylum under section 208 of
the Immigration and Nationality Act, 8 U.S.C. § 1158 (2000). 1 The appeal
will be sustained and the record will be remanded to the Immigration Judge
for a decision on the merits of the respondent’s application for asylum.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 19-year-old native and citizen of the People’s Republic
of China. He was an unaccompanied minor when he entered the United States
without inspection on July 3, 1998. On the day of his arrival the Immigration
and Naturalization Service served him with a Notice to Appear (Form I-862),
which was filed with the Immigration Court on July 30, 1998. On July 13,
1999, the Service released the respondent from custody and paroled him to
the custody of his uncle.
The respondent attempted to file an asylum application with the
Immigration Judge 5 months later, in December 1999, but it was rejected. The
1
The respondent has raised additional issues on appeal. However, in light of our
decision, we need not address them at this time.
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respondent eventually filed his application with the Immigration Judge in May
2000. The Immigration Judge denied his application, finding that the
respondent had not filed within a year of his arrival, as required by section
208(a)(2)(B) of the Act, and that he had not shown either changed
circumstances or extraordinary circumstances that would excuse the delay in
filing under section 208(a)(2)(D).
II. ANALYSIS
With certain exceptions, an alien who is physically present in the United
States, irrespective of status, may apply for asylum. See section 208(a)(1)
of the Act. The alien must show by clear and convincing evidence that an
application for relief was filed within 1 year after the date of his or her arrival
in the United States. See section 208(a)(2)(B) of the Act. However, failure
to meet the 1-year deadline does not give rise to an absolute bar to filing an
asylum application. Notwithstanding this time limit, an asylum application
may be considered if the alien demonstrates, to the satisfaction of the
Attorney General, either the existence of changed circumstances that
materially affect the applicant’s eligibility for asylum, or extraordinary
circumstances relating to the delay in filing an application within the 1-year
period. See section 208(a)(2)(D) of the Act.
It is undisputed that the respondent filed his written asylum application
with the Immigration Judge more than 1 year after his arrival in this country.
The respondent makes no claim of changed circumstances. Instead, he argues
that extraordinary circumstances prevented him from meeting the filing
deadline.
In the context of this case, the term “extraordinary circumstances” is
defined as follows:
The term “extraordinary circumstances” in section 208(a)(2)(D) of the Act shall refer
to events or factors directly related to the failure to meet the 1-year deadline. Such
circumstances may excuse the failure to file within the 1-year period as long as the alien
filed the application within a reasonable period given those circumstances. The burden of
proof is on the applicant to establish to the satisfaction of the asylum officer, the
immigration judge, or the Board of Immigration Appeals that the circumstances were not
intentionally created by the alien through his or her own action or inaction, that those
circumstances were directly related to the alien’s failure to file the application within the
1-year period, and that the delay was reasonable under the circumstances. Those
circumstances may include but are not limited to:
...
(ii) Legal disability (e.g., the applicant was an unaccompanied minor or suffered from
a mental impairment) during the 1-year period after arrival . . . .
8 C.F.R. § 208.4(a)(5) (2001).
In determining whether extraordinary circumstances exist to excuse an
alien’s failure to meet the deadline for filing an asylum application, we
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conduct an individualized analysis of the facts of the particular case. We are
not required to excuse the respondent’s tardy filing merely because the
regulation includes unaccompanied minor status as a possible extraordinary
circumstance. Instead, the respondent must establish the existence or
occurrence of the extraordinary circumstances, must show that those
circumstances directly relate to his failure to file the application within the
1-year period, and must demonstrate that the delay in filing was reasonable
under the circumstances.
The record indicates that the respondent was 15 years old when he arrived
here as an unaccompanied minor and that he remained under this legal
disability throughout the following 1-year period. See
8 C.F.R.
§ 208.4(a)(5)(ii). He was in Service custody until just over a year after his
arrival, when he was released into his uncle’s custody. Approximately
5 months later, the Immigration Judge refused to accept the respondent’s
proffered asylum application. The respondent eventually filed his application
with the Immigration Judge in May 2000, less than a year after he was
released from Service custody. At the time of that hearing, the respondent
was still a minor.
Moreover, the Service placed the respondent in removal proceedings
immediately after he arrived here. Once the respondent was in removal
proceedings, the Immigration Judge had authority to set a deadline for filing
the asylum application. See
8 C.F.R. § 3.31(c) (2001). The Immigration
Judge also had authority to conduct the proceedings in such a manner as to
avoid unwarranted delay.
On these facts, we find that the respondent has established extraordinary
circumstances for the delay in filing his application for asylum. See section
208(a)(2)(D) of the Act. He did not, through his own action or inaction,
intentionally create these circumstances, which were directly related to his
failure to meet the filing deadline. See
8 C.F.R. § 208.4(a)(5). We find that
the respondent filed his application within a reasonable period given these
circumstances.
Id. We therefore conclude that these extraordinary
circumstances excuse his failure to file within a year of his arrival.
III. CONCLUSION
The respondent was an unaccompanied minor when he arrived in the United
States. He remained under this legal disability during the 1-year period after
his arrival while removal proceedings were pending and he was in the custody
of the Service. The respondent established extraordinary circumstances that
excused his failure to file his asylum application within 1 year of the date of
his arrival. Accordingly, the respondent’s appeal will be sustained, and the
record will be remanded to give him an opportunity to pursue his application
for asylum on the merits.
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ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
CONCURRING OPINION: Lauri Steven Filppu, Board Member, in
which Lori L. Scialabba, Acting Chairman; Mary Maguire Dunne, Vice
Chairman; Patricia A. Cole, Frederick D. Hess, and Roger A. Pauley,
Board Members, joined
I respectfully concur. I agree with the majority that removal proceedings
should be reopened because the respondent meets the “extraordinary
circumstances” test for not having filed his asylum application within a year
of his arrival. I do not agree, however, with that portion of the majority’s
opinion which indicates that an alien’s discretion as to when to file is
constrained by the authority of an Immigration Judge to set deadlines.
Nothing in that authority prevents an alien from filing before any deadline set
by an Immigration Judge. I am also not aware of any preclusion on filing an
asylum application in removal proceedings even in the absence of a deadline
set by an Immigration Judge.
In this case, I find that the “extraordinary circumstances” test of section
208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C.
§ 1158(a)(2)(D) (2000), has been satisfied by the respondent’s youth and the
totality of the circumstances. The record indicates that the respondent was
15 years of age when he arrived in July of 1998. He was promptly detained
and placed in removal proceedings. The Immigration Court in Chicago,
Illinois, scheduled various dates for master calendar hearings from August of
1998 through February of 1999. The record, however, does not reflect that
the respondent ever attended a hearing in Chicago.
The respondent bonded out of custody in July of 1999, a year after his
arrival. Venue was changed to New York and his first master calendar
hearing occurred on September 17, 1999, at which time he said he would
apply for asylum. The written asylum application was submitted on
December 21, 1999, only days after the respondent turned 17. It was
approximately 5½ months late.
The regulations recognize that an “extraordinary circumstance” may arise
by virtue of a person’s status as an unaccompanied minor. 8 C.F.R.
§ 208.4(a)(5)(ii) (2001). In this case, the respondent was additionally
confined by the Immigration and Naturalization Service during the entire
1-year period for filing an asylum application. It further appears that he was
not brought before an Immigration Judge during that 1-year period. The
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record is silent on the circumstances of his confinement and the reasons for
the Service’s failure to produce him for any of the hearing dates scheduled in
Chicago.
I find that an “extraordinary circumstance” arises from the combination of
the respondent’s youth, his detention, and the unexplained failure of the
Service to produce him for a hearing during the 1-year period for filing an
asylum application. Further, I find that his submission within 6 months of
release, while still a minor, was reasonable under all the circumstances.
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