BIA: Unaccompanied Minor Detained for Over 1 Year Following Arrival Allowed to Seek Asylum Despite Failure to Meet Deadline (Matter of Y-C-)

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

BIA: UNACCOMPANIED MINOR DETAINED FOR OVER 1 YEAR FOLLOWING ARRIVAL ALLOWED TO SEEK ASYLUM DESPITE FAILURE TO MEET DEADLINE (MATTER OF Y-C-)
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

The Board of Immigration Appeals has issued an en banc precedent decision finding that a Chinese national established "extraordinary circumstances" that excused his failure to apply for asylum within the one-year statutory deadline. The decision comes in the case of an unaccompanied minor who was detained by the Immigration and Naturalization Service on the date of his arrival in the United States and who, for more than a year thereafter, was held in custody without being brought to a hearing.

The respondent in this case was 15 years old when he arrived in the U.S. on July 3, 1998. On the day of his arrival, he was detained by the INS and served with a notice to appear (NTA). The NTA was filed with the immigration court four weeks later. However, although the immigration court repeatedly scheduled master calendar hearings, from August 1998 through February 1999, the INS never brought the respondent to a hearing. On July 13, 1999, the respondent was released from INS detention and paroled to the custody of his uncle. In December 1999, he attempted to file an asylum application with the immigration court, but it was rejected. In May 2000 he did file the application. However, the immigration judge denied it on the grounds that it was not filed within one year of the respondent's arrival in the U.S. and that the respondent failed to show either changed circumstances or extraordinary circumstances to excuse the delay in filing. The respondent then appealed the denial.

On appeal, the BIA noted that the determination of whether an asylum applicant has established extraordinary circumstances to excuse failing to meet the one-year deadline requires "an individualized analysis of the facts of the particular case." Although the regulations explicitly recognize that the fact that an applicant is an unaccompanied minor may constitute an extraordinary circumstance, the BIA found that this fact in itself does not require such a finding. Rather, a 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."

In this case, the BIA concluded that the respondent established extraordinary circumstances. The BIA noted that, once removal proceedings have commenced, the immigration judge has authority to set a deadline for filing an asylum application and that the respondent was not responsible for the INS's failure to bring him to a hearing. The respondent did attempt to file an application in December 1998, five months after his release from detention, and he eventually did file the application within one year of his release from detention. Accordingly, the BIA ordered the case remanded to the immigration judge for consideration of the respondent's asylum application.

BIA Member Filppu, joined by Acting Chair Scialabba and Vice Chair Dunne, as well as Members Cole, Hess, and Pauley, issued a concurring opinion. They agreed that the respondent established extraordinary circumstances excusing his failure to apply for asylum within one year of arrival in the U.S. However, they disagreed with the implication of the majority opinion that a respondent's ability to file an asylum application is constrained by the immigration judge's authority to set deadlines for such filing.

Matter of Y-C-, 23 I. & N. Dec. 286, Int. Dec. 3465 (BIA Mar. 11, 2002).