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How the Mendez Rojas Settlement Affects Asylum Seekers

Application for asylum to USA concept with application form and USA flag

United States law requires that a person seeking asylum in the U.S. must apply for asylum within one year of their last arrival to this country. A recent case, Mendez Rojas v. Wolf, involved a challenge to the federal government’s failure to give proper notice of this requirement to asylum seekers. The plaintiffs in the case were in the custody of the Department of Homeland Security (DHS) a short time after their arrival in the United States.

In addition to claiming that the government did not give adequate notice of the one-year deadline to file for asylum, the plaintiffs asserted that the federal government failed to provide a means by which asylum seekers could apply for asylum in a timely manner.

The case was allowed to proceed as a class action in the U.S. District Court for the Western District of Washington in 2017. In 2018, the District Court ordered the government to give class members notice of the one-year filing deadline and recalculate the deadline from the date proper notice was given. The court also ordered the government to put in place procedural mechanisms that would allow class members to file applications for asylum within the time provided.

The plaintiffs and defendants in the Mendez Rojas case began settlement negotiations to decide how to best implement the court’s directions. On November 4, 2020, the court adopted the terms of the parties’ settlement agreement.

Terms of the Mendez Rojas Settlement

There are three key components of the Mendez Rojas settlement. The government will:

  • Provide adequate notice of the one-year filing deadline to asylum seekers going forward;
  • Create a uniform procedural mechanism so that future asylum seekers will be able to timely file their applications for asylum; and
  • Give relief to past asylum seekers who suffered harm as a result of the government’s previous failures to provide adequate notice of the filing deadline.

In short, the Mendez Rojas settlement does not only change how future asylum seekers will be dealt with; it can benefit asylum seekers who have already entered the United States. People who can benefit from the settlement may include asylum seekers who have been in the United States for more than a year but have not applied for asylum; asylum seekers who have applied for asylum, but not until they had been in the U.S. for over a year; and asylum seekers who have already been denied asylum.

In order to get relief from the settlement, asylum seekers must establish that they are members of one of the classes protected by the court’s decision in Mendez Rojas.

What are the Protected Classes in Mendez Rojas?

There are two classes of protected individuals in Mendez Rojas. Individuals in both classes:

  • Were encountered by DHS either upon arrival in the United States, or within 14 days of their unlawful entry to the country;
  • Did not receive individualized notice of the requirement of filing for asylum within one year of their last arrival in the United States;
  • Either have not filed an application for asylum, or filed an application but did so more than a year after they last entered the United States.

Individuals in Class A must have been released by DHS after they were found to have a credible fear of persecution as defined in 8 U.S.C. § 1225(b)(1)(B)(ii) and 8 C.F.R. §§ 208.30, 1208.30, 1003.42. Individuals in Class B must have expressed a fear of return to their country of origin. Class A and Class B are both divided into subclasses of individuals who are not in removal proceedings, and those who are.

Class members in removal proceedings must have been issued a Notice to Appear or been in removal proceedings on or after June 30, 2016. Nobody who received the required individualized notice on Form I-862 after January 26, 2021 is a member of either class.

Class members may have an application considered to be timely filed if it is filed on or before April 22, 2022.

What Do “Individualized Notice” and “Uniform Procedural Mechanism” Mean?

In order to be considered “individualized notice,” notice of the one-year filing deadline must have been given to an asylum-seeker by DHS or the Executive Office for Immigration Review (EOIR), who were defendants in the lawsuit. Notice given by others, even third parties who were subcontractors of one of the defendants, does not count as “individualized notice.”

The federal government has revised Form I-862 (Notice to Appear) to contain specific language regarding the filing deadline:

One Year Asylum Application Deadline: If you believe you may be eligible for asylum, you must file Form I-589, Application for Asylum and for Withholding of Removal. The Form I-589, Instructions, and information on where to file the Form can be found at Failure to file Form I-589 within one year of arrival may bar you from eligibility to apply for asylum pursuant to section 208(a)(2)(B) of the Immigration and Nationality Act.

The Uniform Procedural Mechanism (UPM) established by the Mendez Rojas settlement is intended to provide asylum seekers a predictable process for submitting an application for asylum. It seeks to avoid confusion for asylum seekers about where they should file, and to avoid delays that in the past were routinely caused by jurisdictional issues. Learn more about the newly-established UPM for asylum seekers.

Getting Help With an Asylum Application

If you want to know if you qualify for help under Mendez Rojas, or simply need help filing an application for asylum, you can benefit from the guidance of an experienced immigration law attorney. We invite you to contact our law office to schedule a consultation.

Categories: Blog, Immigration Law