[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR208.4]



[Page 141-144]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 208_PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of 

Contents

 

               Subpart A_Asylum and Withholding of Removal

 

Sec. 208.4  Filing the application.



    Except as prohibited in paragraph (a) of this section, asylum 

applications shall be filed in accordance with paragraph (b) of this 

section.

    (a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits 

certain aliens from filing for asylum on or after April 1, 1997, unless 

the alien can demonstrate to the satisfaction of the Attorney General 

that one of the exceptions in section 208(a)(2)(D) of the Act applies. 

Such prohibition applies only to asylum applications under section 208 

of the Act and not to applications for withholding of removal under 

Sec. 208.16. If an applicant files an asylum application and it appears 

that one or more of the prohibitions contained in section 208(a)(2) of 

the Act apply, an asylum officer, in an interview, or an immigration 

judge, in a hearing, shall review the application and give the applicant 

the opportunity to present any relevant and useful information bearing 

on any prohibitions on filing to determine if the application should be 

rejected. For the purpose of making determinations under section 

208(a)(2) of the Act, the following rules shall apply:

    (1) Authority. Only an asylum officer, an immigration judge, or the 

Board of Immigration Appeals is authorized to make determinations 

regarding the prohibitions contained in section 208(a)(2)(B) or (C) of 

the Act.

    (2) One-year filing deadline. (i) For purposes of section 

208(a)(2)(B) of the



[[Page 142]]



Act, an applicant has the burden of proving:

    (A) By clear and convincing evidence that the application has been 

filed within 1 year of the date of the alien's arrival in the United 

States, or

    (B) To the satisfaction of the asylum officer, the immigration 

judge, or the Board that he or she qualifies for an exception to the 1-

year deadline.

    (ii) The 1-year period shall be calculated from the date of the 

alien's last arrival in the United States or April 1, 1997, whichever is 

later. When the last day of the period so computed falls on a Saturday, 

Sunday, or legal holiday, the period shall run until the end of the next 

day that is not a Saturday, Sunday, or legal holiday. For the purpose of 

making determinations under section 208(a)(2)(B) of the Act only, an 

application is considered to have been filed on the date it is received 

by the Service, pursuant to Sec. 103.2(a)(7) of this chapter. In a case 

in which the application has not been received by the Service within 1 

year from the applicant's date of entry into the United States, but the 

applicant provides clear and convincing documentary evidence of mailing 

the application within the 1-year period, the mailing date shall be 

considered the filing date. For cases before the Immigration Court in 

accordance with Sec. 3.13 of this chapter, the application is 

considered to have been filed on the date it is received by the 

Immigration Court. For cases before the Board of Immigration Appeals, 

the application is considered to have been filed on the date it is 

received by the Board. In the case of an application that appears to 

have been filed more than a year after the applicant arrived in the 

United States, the asylum officer, the immigration judge, or the Board 

will determine whether the applicant qualifies for an exception to the 

deadline.

    (3) Prior denial of application. For purposes of section 

208(a)(2)(C) of the Act, an asylum application has not been denied 

unless denied by an immigration judge or the Board of Immigration 

Appeals.

    (4) Changed circumstances. (i) The term ``changed circumstances'' in 

section 208(a)(2)(D) of the Act shall refer to circumstances materially 

affecting the applicant's eligibility for asylum. They may include, but 

are not limited to:

    (A) Changes in conditions in the applicant's country of nationality 

or, if the applicant is stateless, country of last habitual residence;

    (B) Changes in the applicant's circumstances that materially affect 

the applicant's eligibility for asylum, including changes in applicable 

U.S. law and activities the applicant becomes involved in outside the 

country of feared persecution that place the applicant at risk; or

    (C) In the case of an alien who had previously been included as a 

dependent in another alien's pending asylum application, the loss of the 

spousal or parent-child relationship to the principal applicant through 

marriage, divorce, death, or attainment of age 21.

    (ii) The applicant shall file an asylum application within a 

reasonable period given those ``changed circumstances.'' If the 

applicant can establish that he or she did not become aware of the 

changed circumstances until after they occurred, such delayed awareness 

shall be taken into account in determining what constitutes a 

``reasonable period.''

    (5) 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:

    (i) Serious illness or mental or physical disability, including any 

effects of persecution or violent harm suffered in



[[Page 143]]



the past, during the 1-year period after arrival;

    (ii) Legal disability (e.g., the applicant was an unaccompanied 

minor or suffered from a mental impairment) during the 1-year period 

after arrival;

    (iii) Ineffective assistance of counsel, provided that:

    (A) The alien files an affidavit setting forth in detail the 

agreement that was entered into with counsel with respect to the actions 

to be taken and what representations counsel did or did not make to the 

respondent in this regard;

    (B) The counsel whose integrity or competence is being impugned has 

been informed of the allegations leveled against him or her and given an 

opportunity to respond; and

    (C) The alien indicates whether a complaint has been filed with 

appropriate disciplinary authorities with respect to any violation of 

counsel's ethical or legal responsibilities, and if not, why not;

    (iv) The applicant maintained Temporary Protected Status, lawful 

immigrant or nonimmigrant status, or was given parole, until a 

reasonable period before the filing of the asylum application;

    (v) The applicant filed an asylum application prior to the 

expiration of the 1-year deadline, but that application was rejected by 

the Service as not properly filed, was returned to the applicant for 

corrections, and was refiled within a reasonable period thereafter; and

    (vi) The death or serious illness or incapacity of the applicant's 

legal representative or a member of the applicant's immediate family.

    (6) Safe Third Country Agreement. Asylum officers have authority to 

apply section 208(a)(2)(A) of the Act, relating to the determination 

that the alien may be removed to a safe country pursuant to a bilateral 

or multilateral agreement, only as provided in 8 CFR 208.30(e). For 

provisions relating to the authority of immigration judges with respect 

to section 208(a)(2)(A), see 8 CFR 1240.11(g).

    (b) Filing location--(1) With the service center by mail. Except as 

provided in paragraphs (b)(2), (b)(3), (b)(4) and (b)(5) of this 

section, asylum applications shall be filed directly by mail with the 

service center servicing the asylum office with jurisdiction over the 

place of the applicant's residence or, in the case of an alien without a 

United States residence, the applicant's current lodging or the land 

border port-of-entry through which the alien seeks admission to the 

United States.

    (2) With the asylum office. An asylum application shall be filed 

directly with the asylum office having jurisdiction over the matter in 

the case of an alien who:

    (i) Has received the express consent of the asylum office director 

or the Director of Asylum to do so, or

    (ii) Previously was included in a spouse's or parent's pending 

application but is no longer eligible to be included as a derivative. In 

such cases, the derivative should include a cover letter referencing the 

previous application and explaining that he or she is now independently 

filing for asylum.

    (3) With the Immigration Court. Asylum applications shall be filed 

directly with the Immigration Court having jurisdiction over the case in 

the following circumstances:

    (i) During exclusion, deportation, or removal proceedings, with the 

Immigration Court having jurisdiction over the underlying proceeding.

    (ii) After completion of exclusion, deportation, or removal 

proceedings, and in conjunction with a motion to reopen pursuant to 8 

CFR part 3 where applicable, with the Immigration Court having 

jurisdiction over the prior proceeding. Any such motion must reasonably 

explain the failure to request asylum prior to the completion of the 

proceedings.

    (iii) In asylum proceedings pursuant to Sec. 208.2(c)(1) and after 

the Form I-863, Notice of Referral to Immigration Judge, has been served 

on the alien and filed with the Immigration Court having jurisdiction 

over the case.

    (4) With the Board of Immigration Appeals. In conjunction with a 

motion to remand or reopen pursuant to Sec. Sec. 3.2 and 3.8 of this 

chapter where applicable, an initial asylum application shall be filed 

with the Board of Immigration Appeals if jurisdiction over the 

proceedings is



[[Page 144]]



vested in the Board of Immigration Appeals under 8 CFR part 3. Any such 

motion must reasonably explain the failure to request asylum prior to 

the completion of the proceedings.

    (5) With the district director. In the case of any alien described 

in Sec. 208.2(c)(1) and prior to the service on the alien of Form I-

863, any asylum application shall be submitted to the district director 

having jurisdiction pursuant to 8 CFR part 103. If the district director 

elects to issue the Form I-863, the district director shall forward such 

asylum application to the appropriate Immigration Court with the Form

    (c) Amending an application after filing. Upon request of the alien 

and as a matter of discretion, the asylum officer or immigration judge 

having jurisdiction may permit an asylum applicant to amend or 

supplement the application, but any delay caused by such request shall 

extend the period within which the applicant may not apply for 

employment authorization in accordance with Sec. 208.7(a).



[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 64 

FR 13881, Mar. 23, 1999; 65 FR 76131, Dec. 6, 2000; 69 FR 69488, Nov. 

29, 2004]