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Lesson Plan Overview

Course Refugee, Asylum, and International Operations Directorate Officer Training

Asylum Division Officer Training Course

Lesson One-Year Filing Deadline 

Rev. Date May 6, 2013

Lesson Description This lesson describes the statutory bar to applying for asylum more than 

one year after an alien’s date of last arrival. Through discussion of the 

statute, the implementing regulation, and the review of examples, the 

lesson explains the standard of proof and exceptions to the one-year 

filing deadline.

Terminal Performance 

Objective

Given an asylum application to adjudicate in which the one-year filing 

deadline or a previous denial is at issue, the asylum officer will be able 

to properly determine if an applicant is eligible to apply for asylum. 

Enabling Performance 

Objectives

1. Identify to what extent the one-year filing rule is at issue in a 

given case. (ACRR4)(AA1)

2. Apply the clear and convincing evidentiary standard to determine 

if an asylum application complies with the one-year filing rule.

(ACRR4)(AA1)

3. Explain the exceptions to the one-year filing rule. (AA3)(AIL1)

4. Identify all relevant factors in evaluating credibility with respect 

to the one–year filing rule. (AAS5)

5. Determine whether an applicant is barred from applying for

asylum. (ACRR3)(AA3)

Instructional Methods Lecture, discussion, practical exercises

Student References / 

Materials

INA §§ 208(a); 101(a)(42); 8 C.F.R. § 208.4(a); Matter of Y-C-, 23 I & 

N Dec. 286, 288 (BIA 2002); Vahora v. Holder, 641 F.3d 1038 (9th Cir. 

2011).

Method of Evaluation Practical exercise, written exam

Background Reading Joseph E. Langlois. Asylum Division, Office of International Affairs. 

Procedures for Implementing the One-Year Filing Deadline and 

Processing Cases Previously Denied by EOIR, Memorandum to Asylum 

Office Directors, et al. (Washington, DC: Jan. 4, 2002), 11 p. plus 

attachments. (See Asylum lesson plan, Mandatory Bars Overview and 

Criminal Bars to Asylum and RAIO Discretion Training Module)
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Critical Tasks

Skill in identifying information required to establish eligibility. (4) 

Knowledge of policies and procedures for one-year filing deadline. (4)

Knowledge of mandatory bars and inadmissibilities to asylum eligibility. (4)

Knowledge of the criteria for establishing credibility. (4)

Skill in determining materiality of facts, information, and issues. (6) 

Skill in analyzing complex issues to identify appropriate responses or decisions. (5)
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TABLE OF CONTENTS

I. INTRODUCTION.......................................................................................................................... 4

II. OVERVIEW ................................................................................................................................... 4

III. APPLICABILITY .......................................................................................................................... 5

IV. DETERMINING WHETHER THE APPLICATION WAS FILED WITHIN THE ONEYEAR PERIOD.............................................................................................................................. 5

A. Calculating the One-Year Period............................................................................................. 5

B. Burden and Standard of Proof.................................................................................................. 6

V. EXCEPTIONS TO THE ONE-YEAR RULE ............................................................................. 9

A. Changed Circumstances........................................................................................................... 9

B. Extraordinary Circumstances................................................................................................. 13

C. Burden and Standard of Proof................................................................................................ 21

VI. FILING WITHIN A REASONABLE PERIOD OF TIME...................................................... 22

A. Overview................................................................................................................................ 22

B. Delayed awareness................................................................................................................. 23

C. Evaluation of the “reasonable period of time”....................................................................... 23

VII. CREDIBILITY............................................................................................................................. 25

A. Overview................................................................................................................................ 25

B. Totality of the Circumstances................................................................................................ 25

VIII. SUMMARY .......................................................................................................................... 32

A. Filing Deadline Requirement................................................................................................. 32

B. Calculating the One-Year Period........................................................................................... 32

C. Burden and Standard of Proof for One-Year Period.............................................................. 32

D. Exceptions -- Changed or Extraordinary Circumstances...................................................... 32

E. Standard and Burden of Proof for Establishing a Changed or Extraordinary Circumstance. 33

F. Reasonable Period of Delay................................................................................................... 33

G. Credibility .............................................................................................................................. 33
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Presentation References

I. INTRODUCTION

Prior to the Illegal Immigration Reform and Immigrant Responsibility 

Act of 1996 (“IIRIRA”), eligibility for asylum was not linked to how 

long an applicant had been in the United States. IIRIRA introduced a 

new eligibility requirement: an asylum applicant filing after April 1, 

1998, must apply within one year of his or her last arrival or April 1, 

1997, whichever is later, unless there are changed circumstances that 

materially affect his or her eligibility for asylum, or extraordinary 

circumstances relating to the delay in filing. This lesson provides 

guidance on determining whether an applicant has applied for asylum 

within one year from date of arrival in the United States and, if not, 

whether an exception exempting the applicant from this requirement 

applies. 

Pub. L. No. 104-208, 110 

Stat. 3546 (Sept. 30, 1996).

See 8 USC § 1158(a)(2)(B); 

INA § 208(a)(2)(B) (an alien 

must “[demonstrate] by clear 

and convincing evidence that 

the application has been filed 

within 1 year after the date 

of the alien's arrival in the 

United States”);and 8 C.F.R. 

§ 208.4 (a). Exceptions to 

the rule are provided in INA 

§ 208(a)(2)(D) and 8 C.F.R. 

§ 208.4(a).

II. OVERVIEW 

Any asylum applicant who applies for asylum on or after April 1, 

1998 (or April 16, 1998, for those applying affirmatively), must 

establish that he or she filed for asylum within one year from the date 

of last arrival (or April 1, 1997, whichever is later), or establish that 

he or she is eligible for an exception to the one-year filing 

requirement. If an applicant fails to establish either timely filing of 

the application or that an exception applies, the application must be 

referred to the Immigration Court. Only an asylum officer, 

immigration judge or the Board of Immigration Appeals (BIA) is 

authorized to make this determination. The determination may be 

made only after an interview with an asylum officer or hearing before 

an Immigration Judge. 

An asylum interview is the method asylum officers use to determine 

an applicant’s last arrival date, basis for asylum claim, and whether 

any exceptions to the filing deadline apply. No applicant is to be 

denied a full asylum interview based solely on one-year filing 

deadline issues. A full and thorough asylum interview includes a preinterview check of country conditions and post-interview research 

where necessary.

Decisions by an asylum officer must be supported by the officer’s 

written assessment of the case. Because changed conditions may 

provide an exception to the one-year filing requirement (as discussed 

below), all referrals on the basis of the one-year filing deadline must 

address pertinent country conditions and must analyze whether there 

has been any change in country conditions. 

8 C.F.R. § 208.4(a).

See discussion of 14-day 

grace period in Section III

below for April 16, 1998 

date.

Note: An applicant who is 

not eligible to apply for 

asylum for failure to meet 

the one-year filing 

requirement is still eligible 

to apply for withholding of 

removal before an 

immigration judge.
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III. APPLICABILITY

Only affirmative applications with a filing date on or after April 16, 

1998, are subject to the one-year rule. Applications with a filing date 

on or before April 15, 1998, are not subject to the one-year filing 

deadline as implemented by the Asylum Division. Although April 1, 

1998, is the effective date provided by regulation for those who 

arrived before April 1, 1997, legacy-INS extended an administrative 

14-day grace period for applications filed with the INS. This 14-day 

period only applies to those applications filed in the first 15 days of 

April, 1998. 

The Trafficking Victim’s Protection Reauthorization Act (TVPRA)

amended the INA to state that the one-year filing deadline does not 

apply to unaccompanied alien children. As of the TVPRA’s effective 

date of March 23, 2009, when you determine that a minor principal 

applicant is an unaccompanied alien child, you should forego the oneyear filing deadline analysis and conclude that the one-year filing 

deadline does not apply. 

See INA § 208(a)(2)(E); 

TVPRA, P.L. 110-457, § 

235(d)(7)(A). 

Memorandum from Joseph 

E. Langlois, Chief, USCIS 

Asylum Division, to Asylum 

Office Staff, Implementation 

of Statutory Change 

Providing USCIS with Initial 

Jurisdiction over Asylum 

Applications Filed by 

Unaccompanied Alien 

Children, (HQRAIO

120/12a) (25 March 2009).

IV. DETERMINING WHETHER THE APPLICATION WAS 

FILED WITHIN THE ONE-YEAR PERIOD 

A. Calculating the One-Year Period 

1. Date one-year period begins

The one-year period is calculated from the date of the 

applicant’s last arrival in the United States or from April 1, 

1997, whichever date is later. The date of arrival is 

counted as day zero, so the first day in the calculation is the 

day after the last arrival.

For example, if an applicant enters the United States on 

February 2, 2000, leaves the United States on February 25, 

2000, and returns to the United States on March 1, 2000, 

the one-year period begins on March 2, 2000. 

Note: The regulations, at 8 C.F.R. § 208.4(a), state that an 

applicant has the burden of proving that her “application 

has been filed within 1 year of the date of the alien’s arrival 

in the United States,” and that “[t]he 1-year period shall be 

calculated from the date of the alien’s last arrival in the 

United States . . .”. Before the Ninth Circuit’s opinion in 

Minasyan v. Mukasey, the Asylum Division counted the 

day of arrival as “day one” for purposes of calculating the 

one-year period. In order to maintain a consistent national 

8 C.F.R. § 208.4(a)(2)(ii); 

Matter of F-P-R, 24 I. & N. 

Dec. 681 (BIA 2008) 

(holding that the term “last 

arrival” refers to the alien’s 

most recent arrival in the 

United States from a trip 

abroad). 

See Minasyan v. Mukasey, 

553 F.3d 1224 (9th Cir. 

2009) (“[T]he statute 

specifically provides that the 

one-year period for filing an 

asylum application 

commences after the date of 

arrival, meaning that his date 
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approach--in accord with the INA, the regulations, and 

Minasyan, the Asylum Division now calculates the day of 

arrival as “day zero.” 

of arrival does not count as 

“day one” for purposes of 

the filing deadline.” )

2. Date one-year period ends

The one-year period is calculated from the last arrival date 

up to the same calendar day the following year. For 

example, an applicant who arrives on February 23, 2000, 

and files on February 23, 2001, will have timely filed. 

Note that for an applicant who last arrived before April 1, 

1997, the one-year period is calculated from April 1, 1997.

If the last day for timely filing falls on a Saturday, Sunday, 

or legal holiday, filing on the next business day will be 

considered timely. For example, an applicant who last 

arrives on June 24, 2000, can timely file on June 25, 2001, 

because June 24, 2001, is a Sunday.

8 C.F.R. § 208.4(a)(2)(ii)

See Jorgji v. Mukasey, 514 

F.3d 53 (1st Cir. 2008) 

(finding that the applicant 

filed timely where she 

entered on March 4, 2001 

and provided documentary 

evidence that she filed on 

Monday, March 4, 2002).

3. Filing date

The filing date is found on the Service Center’s date/time 

stamp on the I-589 and on the RAPS “I589” and “CSTA”

screens. If any of these dates are different, the earliest date 

is to be used. 

An affirmative asylum application is considered filed when 

received by the USCIS Service Center. However, the 

application can be considered timely if “clear and 

convincing” documentary evidence demonstrates that the 

application was mailed within the statutory one-year period. 

The “clear and convincing” standard is explained in Section 

IV.B.

8 C.F.R. § 208.4(a)(2)(ii); 

see Nakimbugwe v. 

Gonzales, 475 F.3d 281 (5th 

Cir. 2007). 

B. Burden and Standard of Proof

There are two different standards of proof that are operative in 

making determinations related to the one-year filing requirement: 

a) the standard of proof to establish that an applicant applied 

within one year and b) the standard of proof to establish that an 

exception to the requirement applies, if the applicant failed to 

meet the one-year requirement. This section focuses on the 

standard of proof required to establishing filing within one year.
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1. Applicant’s burden 

The burden of proof is on the applicant to establish that he 

or she applied for asylum within one year from the date of 

last arrival in the United States.

2. Standard of proof 

Pursuant to INA section 208(a)(2), the standard of proof 

required to establish that an applicant filed within one year 

from last arrival is the clear and convincing standard. 

“Clear and convincing” is that degree of proof that will 

produce a “firm belief or conviction as to the allegations 

sought to be established,” and “where the truth of the facts 

asserted is highly probable.” 

The proof need not be “conclusive” or “unequivocal;” if put 

on a scale, the clear and convincing standard would be 

somewhere between the “preponderance of evidence” 

standard (greater than 50% standard, or “more likely than 

not”) and the “beyond a reasonable doubt” standard used in 

criminal trials. 

Asylum officers should avoid trying to place the clear and 

convincing standard on a particular point on a percentage 

scale. Clear and convincing evidence does not fall 

precisely on any point between the “preponderance of 

evidence” standard and the “beyond a reasonable doubt” 

standard. Instead, it is the degree of evidence necessary to 

create a firm belief that the asserted fact is true.

Black’s Law Dictionary, 5th

and 6th Editions; Woodby v. 

INS, 385 U.S. 276 (1966); 

Matter of Carrubba, 11 I&N 

Dec. 914 (BIA 1966); Matter 

of Patel, 19 I&N Dec. 774 

(BIA 1988).

3. Establishing timely filing

An applicant may establish that an application was filed 

within one year from the date of last arrival by providing 

either—

a. clear and convincing evidence that the date of last 

arrival was within the applicable one-year period, or

b. clear and convincing evidence that the applicant was 

outside of the United States during the previous year 

immediately before the date of filing. 

In 2008, a Ninth Circuit decision held that, “the BIA 

erred in concluding that proof of an exact departure 

date was necessary when other clear and convincing 

Khunaverdiants v. Mukasey, 

548 F.3d 760, (9th Cir. 

2008).
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evidence established . . . that [the applicant] was 

released from prison in Iran less than one year before 

filing his asylum application.”

4. Evidence

The evidence provided may be testimony, documentation, 

or a combination of both.

a. Testimony

Testimony is evidence. Standing alone without 

witness corroboration or documentary evidence, when 

credible, testimony can be sufficiently clear and 

convincing to lead an asylum officer to a “firm belief” 

that the applicant arrived within one year before the 

filing date. 

8 C.F.R. § 208.13(a); Matter 

of S-M-J-, 21 I&N Dec. 722 

(BIA 1997); see RAIO 

Training Module, Evidence.

b. Documents

Documentary evidence such as passport entries, 

boarding passes, leases, etc., are probative as to when 

an applicant entered the United States, when presence 

outside the United States ended, and when presence in 

the United States began.

While the INA requires that an asylum applicant

provide reasonably available corroborating evidence 

to establish eligibility for asylum, neither the statute 

nor regulations specifically address requirements for 

establishing that the one-year filing requirement has 

been met. However, consistent with the reasoning of 

case law addressing corroboration is the premise that 

corroboration should not be required when there are 

reasonable explanations for the inability to provide 

corroborating evidence. Due to circumstances that 

give rise to a refugee’s flight, it generally would be 

unreasonable to expect a refugee to have documentary 

proof of presence outside the United States within a 

year from last arrival. Furthermore, at least one circuit

has held that an applicant cannot be required to 

provide corroborating evidence to show he or she has 

met the one-year filing deadline. 

Note: There may be instances in which the asserted arrival date 

is uncertain or not believable. These credibility issues are 

explored in Section VII. 

See RAIO Training Module, 

Evidence.

In Singh v. Holder, 649 F.3d

1161 (9th Cir. 2011)

(holding that the requirement 

for corroborating evidence to 

establish asylum eligibility 

added by the REAL ID Act 

of 2005 does not apply to the 

statutory provision 

establishing the one-year 

filing deadline for asylum 

applications, but not 

considering whether, in the 

absence of credible 

testimony meeting the clear 

and convincing standard, an 

IJ may weigh the lack of 

corroborating evidence in 
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assessing compliance with 

the standard).

V. EXCEPTIONS TO THE ONE-YEAR RULE 

If an applicant did not apply for asylum within one year from last 

arrival in the United States, he or she may still be eligible to apply for 

asylum if the applicant establishes that there are changed 

circumstances materially affecting the applicant’s eligibility for 

asylum or extraordinary circumstances related to the delay in filing. 

Once an applicant establishes the existence of such a changed or 

extraordinary circumstance, the applicant must demonstrate that the 

application was filed within a reasonable amount of time given those 

circumstances. 

Keep in Mind:

The analysis of whether an applicant qualifies for asylum is not 

relevant to examining one-year filing deadline issues; rather, the task 

at this initial stage is to determine whether an exception to the oneyear filing deadline applies. If an exception to the one-year filing 

deadline applies, then the applicant is entitled to a full adjudication of 

his or her asylum application.

INA § 208(a)(2)(D); 8

C.F.R. § 208.4(a).

A. Changed Circumstances

1. General considerations INA § 208(a)(2)(D).

The statute allows for an exception due to changed 

circumstances that materially affect an applicant’s 

eligibility for asylum. To show that the exception applies, 

the applicant must establish the following:

a. the existence of a changed circumstance that occurred 

on or after April 1, 1997, the effective date of the 

statute;

b. that the changed circumstance is material to the 

applicant’s eligibility for asylum; and

Note: An exception may 

result regardless of when the 

changed circumstance 

occurs, so long as it occurred 

after the effective date of the 

statute. The changed 

circumstance need not occur 

during the period when filing 

would be timely.

c. that the application was filed within a reasonable 

period of time after the changed circumstance. 

In evaluating whether a delay in filing was reasonable, 

the asylum officer must take into account any delayed 

awareness the applicant may have had of the changed 

circumstance. 

8 C.F.R. § 208.4(a)(4)(ii). 

This is discussed further in 

Section VI, Filing Within a 

Reasonable Period of Time, 

below. 
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2. Types of changed circumstances

The federal regulations on filing the asylum application 

provide a non-exhaustive list of the types of changed 

circumstances that may provide an exception to the oneyear filing rule, as long as they materially affect the 

applicant’s eligibility for asylum. These include:

a. changed conditions in the applicant’s country of 

nationality or, if stateless, the applicant’s country of 

last habitual residence

8 C.F.R. § 208.4(a)(4)(i)(A).

b. changes in applicable U.S. law 8 C.F.R. § 208.4(a)(4)(i)(B).

c. changes in the applicant’s circumstances, such as 

recent political activism outside the country of feared 

persecution, conversion from one religion to another, 

etc.

8 C.F.R. § 208.4(a)(4)(i)(B).

d. the ending of the applicant’s spousal or parent-child 

relationship to the principal applicant in a previous 

application.

8 C.F.R. § 208.4(a)(4)(i)(C).

Examples

1) Applicant was forced by her government to undergo 

an abortion. She arrives in the U.S. in 1992. The 

1996 change to the refugee definition related to harm 

pursuant to a coercive population control program 

materially affects her asylum eligibility. She files for 

asylum on April 18, 1998. This applicant is not 

entitled to the changed circumstance exception 

because the change did not occur on or after April 1, 

1997. If no other exceptions apply, her application 

will be referred.

Zhu v. Gonzales, 493 F.3d 

588, 595 n.25 (5th Cir. 2007) 

(rejecting Zhu’s argument 

that changed circumstances 

exist, given that China’s 

family planning laws existed 

as a basis for eligibility for 

asylum when Zhu arrived in 

the US).

2) Applicant is a member of the XYZ party in his 

country. He is briefly jailed in September 1999. He 

arrives in the U.S. in November 1999 and files for 

asylum in December 2000. On the day of the 

interview, XYZ members are still routinely being 

jailed. Because there has been no change of country 

conditions, the application will be referred provided 

no other exceptions apply. 

Mabasa v. Gonzales, 455 

F.3d 740 (7th Cir. 2006) 

(holding that applicant did 

not show changed or 

worsened circumstances 

because the political climate 

in Zimbabwe remained as 

oppressive as it was at the 

time of his departure, and the 

applicant’s renewed political 
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Note: If conditions for XYZ members worsened after 

applicant departed his country, he may be eligible for 

the changed circumstance exception.

In Vahora v. Holder, the Ninth Circuit further 

clarified this point. Vahora had already been 

subjected to serious physical harm in India because of 

his religion but, after he left, conditions worsened 

significantly. The country experienced the worst 

religious violence in decades and the religious rioting 

directly affected Vahora’s family, property, and 

safety in India – his home and farm were destroyed 

and his family members were pursued by the police

and went missing. Mr. Vahora did not file his 

affirmative asylum application within a year of his 

last arrival in the U.S. The IJ found, and the BIA 

upheld, no changed circumstance, finding instead that 

these events and their impact on Vahora were 

insufficient to show a material effect on his eligibility 

for asylum because he had already experienced 

mistreatment in India and should have expected it 

would continue if he returned.

The Ninth Circuit reversed, finding that there were 

changed circumstances because the new facts make it 

substantially more likely that Vahora’s claim will 

entitle him to relief, and that such events did 

materially effect his eligibility as required by 8 C.F.R. 

§ 208.4(a)(4)(i)(a). Such a material effect is one that 

increases in a non-trivial way the likelihood of 

success in an application.

activity in the US was the 

very activity that caused his 

original flight); see also, 

Ramadan v. Gonzales, 479 

F.3d 646, 657-58 (9th Cir. 

2007), rehearing and 

rehearing en banc denied by, 

Ramadan v. Keisler, 504 

F.3d 973 (9th Cir. 2007) (no 

changed circumstances 

where applicant expressed 

her political opinions in the 

U.S. on women’s liberty in 

Egypt but had already been 

outspoken on women’s 

issues while in Egypt).

Vahora v. Holder, 641 F.3d 

1038 (9th Cir. 2011); see 

also Fakhry v. Mukasey, 524 

F.3d 1057 (9th Cir. 2008) 

(where there are objectively 

changed circumstances, 

“there can be ‘changed 

circumstances which 

materially affect the 

applicant’s eligibility for 

asylum’ even if the alien 

always meant to apply for 

asylum and always feared 

persecution; a sudden 

‘Eureka!’ state of mind is not 

necessary.”).

3) Applicant arrived in the U.S. in 1989 and has never 

left. She was included as a derivative on her mother’s 

I-589, which was filed in September 1998, while 

Applicant was still a minor. Applicant’s mother died 

in May 1999 before receiving her asylum interview. 

In June 2000, Applicant filed her own I-589. Due to 

the change in Applicant’s derivative relationship, an 

exception to the filing deadline would apply provided 

the asylum officer considered the delay in filing from 

May 1999 to June 2000 to be a reasonable period of 

time. 
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Note: The fact that minors customarily leave 

immigration and other legal paperwork to older family 

members should be taken into account when 

evaluating the reasonableness of the delay in filing.

4) Applicant was a derivative on his father’s I-589, 

which was filed in January 1999. In July 2000, 

Applicant got married. As a result, he lost his 

eligibility for derivative status in relation to his father. 

Applicant filed his own I-589 in November 2000. An 

exception to the filing deadline would apply in the 

son’s case, provided the asylum officer considered the 

delay in filing from the date of marriage to the I-589 

filing date to be a reasonable period of time. 

Note: It will be rare that an asylum officer will 

encounter an applicant who was a derivative on his or 

her parent’s claim and who subsequently filed as a 

principal because he or she is no longer under 21 years 

of age. This is because under the Child Status 

Protection Act, a derivative applicant continues to be 

considered a child for purposes of the parent’s 

pending I-589, even though the dependent turned 21 

years of age.

INA § 208(b)(3) as amended 

by the Child Status Protection 

Act of 2002, P.L. 107-208. 

See also Asylum lesson, 

Guidelines for Children’s 

Asylum Claims. Note: 

reference to the Asylum 

lesson is accurate as of this 

date. At a future date, this 

will reference the RAIO 

training module, Children’s 

Claims, Asylum Supplement.

3. Refugees sur place

The term “refugees sur place” refers to those who became 

refugees after leaving their home country. The changed 

circumstance exception to the one-year filing deadline 

reflects the principle that some individuals become refugees 

after they have left their countries and even after they may 

have been residing in another country for several years

(“refugees sur place”). 

Changes occurring in an applicant’s country or place of last 

habitual residence, and/or activities by an applicant outside 

his or her country may make the applicant a refugee sur 

place. Examples include but are not limited to:

8 C.F.R. § 208.4 

(a)(4)(i)(A); UNHCR 

Handbook, Paragraphs 94-

95; Matter of Mogharrabi, 

19 I&N Dec. 439 (BIA 

1987); See RAIO Training 

Module, Well-Founded 

Fear, .

a. a change of government which is now hostile to an 

applicant’s profession, such as journalists

b. an applicant’s involvement in political organizing or 

other activities in the U.S. that are critical of the 

applicant’s government
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c. an applicant’s conversion from one religion to 

another, or abandonment of religion altogether recent 

antagonism in an applicant’s country toward the 

applicant’s race or nationality

d. recent antagonism in an applicant’s country toward the 

applicant’s race or nationality

e. threats against an applicant’s family member living 

abroad

Taslimi v. Holder, 590 F.3d 

981 (9th Cir. 2010) (finding 

that the delay between the 

applicant’s conversion 

ceremony and the filing of 

her asylum application was

reasonable, as religious 

conversion is a subjective 

process that may begin on a 

certain date but takes time to 

incorporate into one’s life).

Example

A Russian citizen of West African ancestry has lived in the 

United States since 1989. She filed an I-589 in June 2000. 

Country conditions information shows that since the 1991 

breakup of the former Soviet Union, individuals with West 

African ancestry have been targeted by ordinary citizens in 

Russia. The police have tolerated this abuse. Depending on 

the particular circumstances of the case, this applicant could 

be considered a refugee sur place. Provided there are no 

additional exceptions, because the change in country 

conditions occurred before April 1997, the applicant’s 

failure to file for asylum within one year of arrival would 

result in her application being referred. Note: If there had 

been an escalation of violence between ethnic Russians and 

West Africans after April 1, 1997, the applicant would be 

eligible for an exception, provided the delay in filing is a 

reasonable period of time.

See Matter of A-M-, 23 I&N 

Dec. 737 (BIA 2005) (where 

applicant entered the U.S. on 

January 22, 2001, and filed 

for asylum over 2 years later, 

the nightclub bombing in 

Bali, Indonesia on October 

12, 2002 did not constitute a 

material change in 

circumstances because the 

bombing did not materially 

affect or advance applicant’s 

claim: he was from a 

different island and of a 

different ethnicity and 

religion than both those 

generally in Bali and the 

specific victims of the Bali 

bombing). 

B. Extraordinary Circumstances

1. General considerations

Events or factors in an applicant’s life that caused the 

applicant to miss the filing deadline may except the 

applicant from the requirement to file within one year of the 

last arrival or April 1, 1997, whichever is later. To be 

eligible for this exception, the applicant must:

8 C.F.R. § 208.4(a)(5).

a. establish the existence of an extraordinary 

circumstance;

b. establish that the extraordinary circumstance was 

directly related to the failure to timely file;

c. not have intentionally created the extraordinary 
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circumstance, through his or her action or inaction, for 

the purpose of establishing a filing-deadline 

exception; and

d. file the application within a reasonable period given 

the circumstances that related to the failure to timely 

file.

Although an extraordinary circumstance can occur before 

or after an applicant’s arrival in the U.S., and before or after 

the April 1, 1997, the effective date of the statutory 

provision, the extraordinary circumstance must directly 

relate to an applicant’s failure to file within the one year 

period when filing would be timely.

Note: Because an 

extraordinary circumstance 

must directly relate to the 

failure to file, it must occur 

in the period when filing 

would be timely for an 

exception to exist (in 

contrast with a changed 

circumstance, which may 

occur at any time). 

2. Types of circumstances that may be “extraordinary”

The federal regulations describe several situations that 

could fall under the extraordinary circumstances exception. 

This list is not exhaustive or all-inclusive. There are other 

circumstances that might apply if the applicant is able to 

show that those circumstances were extraordinary and 

directly related to the failure to timely file. 

The Asylum Division considers the examples of 

extraordinary circumstances listed in the regulation as 

circumstances that, if experienced by an applicant, are 

likely to relate to the failure to timely file. When an 

applicant establishes the existence of an enumerated 

extraordinary circumstance, the officer should verify that 

the extraordinary circumstance is directly related to the 

failure to timely file. 

Extraordinary circumstances include but are not limited to:

a. serious illness or mental or physical disability, 

including any effects of persecution or violent harm 

suffered in the past 

8 C.F.R. § 208.4(a)(5)(i).

The illness or disability must have been present, 

although not necessarily incurred, during at least part 

of the one-year period after arrival.

If the applicant has suffered torture or other severe 

trauma in the past, the asylum officer should elicit 

information about any continuing effects from that 

torture or trauma, which may be related to a delay in 

Effects of persecution can 

include inability to recall 

details, severe lack of focus, 

problems with eating and 

sleeping, and other post-
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filing. Torture may result in serious illness or mental 

or physical disability.

traumatic stress disorder 

(PTSD) symptoms. See

RAIO training module 

Interviewing - Survivors of 

Torture. See also RAIO 

training module Guidance 

for Adjudicating Lesbian, 

Gay, Bisexual and Intersex 

Claims.

b. the death or serious illness or incapacity of the 

applicant’s legal representative or a member of the 

applicant’s immediate family.

8 C.F.R. § 208.4(a)(5)(vi).

Applicant’s legal guardian, or holder of power of 

attorney, is also considered a family member.

The degree of interaction between the family 

members, as well as the blood relationship between 

applicant and the family member must be considered. 

For example, an estranged brother with whom the 

applicant has never had much contact would not 

qualify, but a grandparent or uncle for whom the 

applicant has sole physical responsibility would 

qualify.

c. legal disability 8 C.F.R. § 208.4(a)(5)(ii).

This is best described as an incapacity for the full 

enjoyment of ordinary legal rights; it includes minors 

and mental impairment.

The legal disability must have existed at a point during 

the one-year period after arrival.

Black’s Law Dictionary, 5th

Ed.

The regulations specifically include “unaccompanied 

minors” as an example of a category of asylum 

applicants that is viewed as having a legal disability 

that constitutes an extraordinary circumstance. 

Keeping in mind that the circumstances that may 

constitute an extraordinary circumstance are not 

limited to the examples listed in the regulations, the 

Asylum Division’s policy is to find that all minors 

who have applied for asylum, whether accompanied or 

unaccompanied, also have a legal disability that 

constitutes an extraordinary circumstance. 

The same logic underlying the legal disability ground 

listed in the regulations applies to accompanied 

minors: minors are generally dependent on adults for 

8 C.F.R. § 208.4(a)(5)(ii); 

see Matter of Y-C-, 23 I & N 

Dec. 286 (BIA 2002).

A minor applicant is defined 

as someone under the age of 

eighteen at the time of filing.

See USCIS Memorandum, 

“Updated Procedures for 

Minor Principal Applicant 

Claims, Including Changes 

to RAPS,” Aug. 14, 2007, 

p.5.
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their care and cannot be expected to navigate 

adjudicatory systems in the same manner as adults. 

As long as an applicant applies for asylum while still a 

minor (while the legal disability is in effect), the 

minor should be found to have not only established the 

existence of an extraordinary circumstance, but also to 

have filed within a reasonable period of time given the 

circumstance, thus meriting an exception to the oneyear filing deadline. 

See section VI, below, 

“Reasonableness....”

(i) Unaccompanied Alien Children (UAC)

The Trafficking Victims Protection 

Reauthorization Act (TVPRA) of 2008 amended 

the INA to state that the one-year filing deadline 

does not apply to unaccompanied alien children. 

An unaccompanied alien child is a child who has 

no legal guardian in the United States, or for 

whom no parent or legal guardian in the United 

States is available to provide care and physical 

custody. As of March 23, 2009, the effective date 

of the TVPRA, when an asylum officer 

determines that a minor principal applicant is an 

unaccompanied alien child, the asylum officer 

should forego the one-year filing deadline 

analysis and conclude that the one-year filing 

deadline does not apply. 

See INA § 208(a)(2)(E); 

TVPRA, P.L. 110-457, § 

235(d)(7)(A); See also

Asylum lesson, Guidelines 

for Children’s Asylum 

Claims. Note: reference to 

the Asylum lesson is

accurate as of this date. At a 

future date, this will 

reference the RAIO training 

module, Children’s Claims, 

Asylum Supplement.

.

(ii) Minors Who Are Not Found To Be 

Unaccompanied Alien Children

The one year filing deadline continues to be 

applicable for minor principal applicants in 

lawful immigration status and minor principal 

applicants who are accompanied. Such cases 

should be analyzed according to the general 

guidance above. 

Note: As passage of the 

TVPRA exempts only

unaccompanied alien 

children from the one-year 

filing deadline, the deadline 

still applies to minors who 

are not found to be 

unaccompanied alien 

children. As a result, the 

examples listed in 8 CFR § 

208.4(a)(5)(ii) are still valid. 

d. ineffective assistance of counsel (limited to attorneys 

or accredited representatives)

8 C.F.R. § 208.4(a)(5)(iii)

The following are required for this exception:

(i) the applicant must file a written affidavit 

explaining the agreement in detail and listing 

what promises the attorney made or did not 
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make, and

(ii) testimony or documentary evidence that the 

accused counsel was informed of the allegation 

and was given an opportunity to respond, and

(iii) testimony or documentary evidence that indicates 

whether there has been a complaint filed with the 

appropriate disciplinary authorities and, if not, an 

explanation why there has been no complaint.

Note: Regulations and case law that address whether 

counsel’s assistance was ineffective are not relevant 

here. The asylum officer is not evaluating whether 

applicant was given poor counsel; rather, the 

responsibility of the asylum officer is to decide 

whether the above asylum regulatory elements have 

been fulfilled and that the counsel’s actions were 

related to the delay in filing. Therefore, a recent 

ruling of the Attorney General that an alien has no 

right to effective assistance of counsel in removal 

proceedings is not relevant in determining whether an 

extraordinary circumstance exists and if an exception 

is warranted.

8 C.F.R. § 292.3(a); Matter 

of Lozada, 19 I&N Dec. 

637 (BIA 1988); Matter of 

B-B-, Int. Dec. #3367 (BIA 

1998).

See Matter of Compean, 24 

I&N Dec. 710 (AG 2009)

e. maintenance of TPS, lawful status, or parole until a 

reasonable period before filing an asylum application

8 C.F.R. § 208.4(a)(5)(iv).

The regulations specifically provide that maintaining 

lawful immigration status during at least part of the 

one-year period qualify as an extraordinary 

circumstance. Thus, maintaining lawful status may 

enable an applicant to establish an exception to the 

requirement to file within the one-year period. As 

with all extraordinary circumstances that affect filing, 

maintaining lawful status excuses the failure to file 

within the one-year period so long as the application 

was filed within a reasonable period given the 

circumstance that relate to the failure to timely file. 

The Department of Justice included these possible 

extraordinary circumstances exceptions to avoid 

forcing a premature application for asylum in cases in 

which an individual believes circumstances in his or 

her country may improve. For example, an individual 

admitted as a student who expects that the political 

situation in her country may soon change for the better 

See 65 Fed. Reg. 76121, 

76123 (Dec. 6, 2000).
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as a result of recent elections may wish to refrain from 

applying for asylum until absolutely necessary.

Given the rationale for the inclusion of legal status as 

an extraordinary circumstance, the Asylum Division 

has determined that the “maintaining lawful status” 

extraordinary circumstance will generally relate to the 

failure to timely file, even where the applicant does 

not reference having status as a reason for the delay in 

filing. 

An applicant has not “maintained lawful status” when:

(i) the admission is based on fraudulent documents,

(ii) he or she appears to be in lawful status, but has 

actually violated that status, or

(iii) the term parole specifically require that asylum 

be filed within one year.

Although applicants in the above circumstances have 

not maintained lawful status, some still may establish 

extraordinary circumstances exceptions. In evaluating 

whether an exception applies, the asylum officer 

should determine whether the applicant believed that 

he or she was maintaining lawful status.

Note: The applicant is not 

precluded from establishing 

an extraordinary 

circumstance where legal 

status has not been 

maintained. Consider if the 

case involves a “delayed 

awareness” of the violation 

of status. See section VI.B., 

Delayed Awareness, below.

In some circumstances, where the visa allows an 

applicant to be admitted to the United States for a 

specific function or purpose, and the applicant never 

performs that function or purpose, the applicant will 

be unable to establish that he or she qualifies for an 

extraordinary circumstances exception.

For example, an applicant who was admitted as an F-1 

student, but never attended school (where the purpose 

of the visa is to permit the applicant to attend school in 

the United States) would be unable to establish that he 

or she qualifies for an extraordinary circumstances 

exception to filing within the one-year deadline. 

On the other hand, an F-1 student may work, 

mistakenly, or transfer schools without permission, 

believing that this does not violate the terms of the 

admission. The applicant’s belief that he or she is 

maintaining F-1 status may provide for an 

extraordinary circumstances exception, provided that 

the applicant filed within a reasonable period of time 

See section VI., Filing 

Within a Reasonable Period 

of Time, below.
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given the circumstances that relate to the failure to 

timely file.

In evaluating whether an extraordinary circumstances 

exception applies, asylum officers should keep in 

mind the rationale for including “maintaining lawful 

status” among the exceptions to the filing deadline 

(see note above). Although not actually maintaining 

status, the applicant who believes he or she is 

maintaining lawful status also may delay filing for 

asylum until there is no alternative.

Parole of one year or less for the purpose of 

submitting an asylum application may not be 

considered an exception to the one-year filing 

deadline. Applicants paroled for the purpose of filing 

asylum are expected to file their asylum applications 

within one year of the parole and are given notice to 

that effect. Therefore, unless such applicants are 

granted an extension of this parole or granted some 

other form of legal status, they are not eligible for the 

lawful status exception to a timely filing.

Applicants who are not paroled for the purpose of 

submitting an asylum application during the required 

filing period may qualify for an extraordinary 

circumstances exception. In such cases, applicants still 

must file within a reasonable time after the period of 

parole ends.

The same logic that applies for asylum applicants who 

are maintaining a status or parole may apply to asylum 

applicants who are derivatives on a principal’s asylum 

application. For instance, where a child is a derivative 

on her parent’s asylum application and the child 

decides to file her own asylum application as the 

principal applicant, the child’s having been a 

derivative on a pending asylum application at a point 

during the one-year following the child’s last entry 

could constitute an extraordinary circumstance. 

An alien with a pending application, who is not in any 

lawful status, may be considered to be an alien whose 

period of stay is authorized by the Attorney General. 

The types of “stay authorized by the Attorney 

General” that the asylum officer might encounter could 

include pending applications for adjustment of status,

Such applicants would not be analyzed specifically 

under the “lawful status” exception to the one-year 

For examples of periods of 

stay authorized by the 

Attorney General, see 

Michael Pearson, Executive 

Associate Commissioner, 

Field Office Operations, 

Period of stay authorized by 

the Attorney General after 

120-day tolling period for 
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filing deadline. However, insofar as the “extraordinary 

circumstances” exception is not limited to the precise 

scenarios outlined, the Asylum Officer should consider 

the totality of the circumstances when determining 

whether an applicant with a pending application can 

establish an exception to the requirement that the 

application be filed within one year of last arrival.

purposes of section 

212(a)(9)(B) of the 

Immigration and Nationality 

Act (the Act). 

(AD 00-07), Memorandum 

to INS field offices, March 

3, 2000.

f. initial attempted submission of application was timely 

(i) defect in first submission 8 C.F.R. § 208.4(a)(5)(v).

The I-589 was mailed within one year of the last 

arrival, but the USCIS Service Center returned it 

as improperly filed. It was subsequently refiled 

more than one year after the arrival. In cases 

such as this, the applicant is presumed to have 

attempted a timely request for protection with 

USCIS. The application will not be referred on 

the basis of the one-year filing deadline, provided 

the applicant refiles within a reasonable period of 

time from the date the application was returned 

by the Service Center. Note: The file must 

always be thoroughly checked to ensure that 

correspondence to an applicant from the Service 

Center is not overlooked.

(ii) administrative closure

Where a case was initially filed before April 16, 

1998 or prior to the expiration of the one-year 

period, then closed and subsequently reopened 

by USCIS, there is no filing deadline issue 

because the application was timely filed. 

(iii) previous asylum case was terminated by an 

immigration judge

Provided the first filing was before April 16, 

1998, or before the expiration of the one-year 

period, an asylum officer should examine the 

period of time from the termination date to the 

second filing date in order to determine whether 

the delay was reasonable.

g. other circumstances 

Other circumstances that are not specifically listed in 

See also RAIO training 

module Guidance for 

Adjudicating Lesbian, Gay, 
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the non-exclusive list in the regulations, but which 

may constitute extraordinary circumstances, 

depending on the facts of the case, include, but are not 

limited to, severe family or spousal opposition, 

extreme isolation within a community, profound 

language barriers, or profound difficulties in cultural 

acclimatization. Any such factor or group of factors 

must have had a severe enough impact on the 

applicant’s functioning to have produced a significant 

barrier to timely filing.

Bisexual and Intersex 

Claims.

C. Burden and Standard of Proof

1. Applicant’s burden

The burden of proof is on the applicant to establish the 

existence of a changed circumstance materially affecting 

eligibility for asylum or of an extraordinary circumstance 

related to the applicant’s failure to apply for asylum within 

one year from the last arrival. 

2. Standard of proof 

The standard of proof to establish changed or extraordinary 

circumstances is proof to the satisfaction of the Attorney 

General. This is a lower standard of proof than the “clear 

and convincing” standard that is required to establish that 

the applicant timely filed. 

INA § 208(a)(2)(D); see

RAIO Training Module, 

Evidence.

The standard “to the satisfaction of the Attorney General” 

places the burden on the applicant to demonstrate that an 

exception applies. The applicant is not required to establish 

“beyond a reasonable doubt” or by “clear and convincing 

evidence” that the exception applies. Rather, this standard 

has been described in another immigration context as 

requiring the applicant to demonstrate that the exception 

applies through “credible evidence sufficiently persuasive 

to satisfy the Attorney General in the exercise of his 

reasonable judgment, considering the proof fairly and 

impartially.”

See Matter of Barreiro, 12 

I&N Dec. 277, 282 (BIA 

1967) (interpreting the 

“satisfaction of the Attorney 

General” standard as applied 

when adjudicating an 

exception to deportability for 

failure to notify the Service 

of a change of address).

This standard has also been interpreted in other 

immigration contexts to require a similar showing as the 

“preponderance of evidence” standard, requiring an 

individual to prove an issue: 

 “by a preponderance of evidence which is reasonable, 

substantial and probative,” or

See e.g. Matter of Barreiros, 

10 I&N Dec. 536, 538 (BIA 

1964) (interpreting same 

standard for rescinding LPR 

status by establishing that 

applicant was not eligible for 

adjustment); Matter of V-, 7 

I&N Dec. 460, 463 (BIA 
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 “in his favor, just more than an even balance of the 

evidence.”

1957) (interpreting standard 

for an alien to establish that 

a marriage was not 

contracted for the purpose of 

evading immigration laws).

3. Evidence

Generally, asylum officers must consult country conditions 

information relevant to the applicant’s claim to determine 

whether there are changed country conditions material to 

the applicant’s eligibility for asylum. 

Note: This, of course, would 

not apply where the changed 

circumstance is a change in 

the applicant’s spousal or 

parent-child relationship to 

the principal in a previous 

application. 

While the burden of proof is on the applicant to show that 

there are changed circumstances that now materially affect 

his or her eligibility for asylum, many applicants affected 

by changed circumstances may not be able to articulate 

those circumstances. The unique nature of assessing an 

applicant’s need of protection places the officer in a 

“cooperative” role with the applicant. It is an asylum 

officer’s affirmative duty “to elicit all relevant and useful 

information bearing on the applicant’s eligibility for 

asylum.”

See RAIO Training Module,

Researching and Using 

Country of Origin 

Information in RAIO 

Adjudications.

UNHCR Handbook, para. 

196; 8 C.F.R. § 208.9(b). .

Asylum officers must be flexible and inclusive in 

examining changed or extraordinary circumstances, if 

credible testimony or documentary evidence relating to an 

exception exists. Documentary evidence includes country 

conditions and legal information that the asylum officer 

researches and uses.

INS, Interim Rule with 

Request for Comments, 62 

Fed. Reg. 10312, 10316

(Mar. 6, 1997) 

(acknowledging the weight 

of “a decision to deny an 

alien the right to apply for 

asylum”); 142 Cong. Rec. 

S11840 (Sept. 30, 1996) 

(comments by Senators 

Hatch and Abraham shortly 

before passage of IIRIRA 

that indicate legislative 

intent for exceptions to cover

a broad range of 

circumstances). 

VI. FILING WITHIN A REASONABLE PERIOD OF TIME

A. Overview

If there are changed or extraordinary circumstances either 

material to the applicant’s claim or related to the applicant’s 

failure to file timely, respectively, the applicant must have filed 

the asylum application within a reasonable period of time from 

the occurrence of the changed or extraordinary circumstance in 

order to establish an exception to the one-year filing deadline.

8 C.F.R. § 208.4(a)(4)(ii).
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B. Delayed awareness

If the applicant can establish that he or she did not become 

aware of the changed circumstances until after they occurred, 

such delayed awareness must be taken into account in 

determining what constitutes a “reasonable period of time.”

8 C.F.R. § 208.4(a)(4)(ii).

C. Evaluation of the “reasonable period of time”

What constitutes a reasonable period of time to file following a 

changed or extraordinary circumstance depends upon the facts of 

the case. There is no amount of time that is automatically 

considered reasonable or unreasonable. Asylum officers must 

ask themselves if a reasonable person under the same or similar 

circumstances as the applicant would have filed sooner. Asylum 

officers are encouraged to give applicants the benefit of the 

doubt in evaluating what constitutes a reasonable time in which 

to file. An applicant’s education and level of sophistication, the 

amount of time it takes to obtain legal assistance, any effects of 

persecution and/or illness, when the applicant became aware of 

the changed circumstance, and any other relevant factors should 

be considered. 

In addition, the applicant may assert that a particular situation 

that would otherwise be considered “an extraordinary 

circumstance,” such as a serious injury to the applicant and/or 

his or her representative, that took place outside of the one year 

filing period contributed to his or her delay in filing. Though 

such situations cannot be considered “extraordinary 

circumstances” for the purposes of an exception, they should be 

considered when determining whether the application was filed 

in a reasonable period of time where there has been a changed or 

extraordinary circumstance identified that could give rise to an 

exception.

Asylum Procedures, 65 Fed. 

Reg. 76121, 16123-24 (Dec. 

6. 2000) (Supplementary 

Information) (noting that the 

finding of changed or 

extraordinary circumstances 

would justify late filing “to 

the extent necessary to allow 

the alien a reasonable 

amount of time to submit the 

application,” but not 

providing an automatic 

extension of a certain period 

of time); see Matter of T-MH- & S-W-C-, 25 I&N Dec. 

193 (BIA 2010) (finding that 

there is no automatic one 

year extension in which to 

file an asylum application 

following material “changed 

circumstances”) 

Examples

1) An educated human rights lawyer arrived in the U.S. in 

1985. She demonstrates that country conditions changed 

in 1997, placing her at risk. She files for asylum in January 

2001. Due to this particular applicant’s knowledge of the 

law and human rights conditions, an explanation for 

waiting so long to file would have to be very convincing to 

be considered reasonable.

2) In 1987 a Polish citizen was jailed by the Polish 

Government for one year for expressing a pro-democracy 
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political opinion. He arrived in the U.S. in 1988. He filed 

for asylum in September 2000. His attorney states that an 

I-589 was not filed for many years because she did not 

believe he was eligible. She believes that a BIA case 

decided in May 2000 affects his eligibility. Presuming his 

attorney is correct, a changed circumstance exception to the 

filing deadline rule – change in applicable U.S. law –

applies, provided that the four-month period from May to 

September is considered a reasonable delay. 

3) Applicant was seriously ill during a one-year period after 

her last arrival, but was in very good health for 18 months 

prior to filing her asylum application. When asked why she 

waited so long, she replied that she was too busy repairing 

her home. While this applicant’s illness constituted an 

extraordinary circumstance for not timely filing the I-589, 

delaying the filing as long as she did was not reasonable. 

Such a delay might, depending on the circumstances, be 

considered reasonable for an applicant who continued to 

require intensive therapy and other treatment as a result of 

the illness.

 

Examples related to permission to remain in the U.S. (“status 

cases”)

When it is determined that an application was untimely filed and 

that during the one-year period the applicant had TPS, parole, or 

a lawful status, the inquiry is whether the applicant filed for 

asylum within a reasonable period of time after the TPS, parole, 

or lawful status ended. The existence of an extraordinary 

circumstance in the form of a legal status does not toll the oneyear limitation. The determinations of reasonableness are made 

on a case-by-case basis. Although the totality of circumstances 

in the case determines what is considered a reasonable period of 

time, guidance offered by the Department of Justice states that 

more than a six-month delay would usually be considered 

unreasonable. 

Husyev v. Mukasey, 528 

F.3d 1172 (9th Cir. 2008)

(Court found that Husyev’s 

filing 364 days after his 

lawful status expired was 

unreasonable even though 

the filing was six months 

after the one-year deadline 

had passed.); see Asylum 

Procedures, 65 Fed. Reg. 

76121, 76123-24 (Dec. 6, 

2000) (Supplementary 

Information) (“Clearly, 

waiting six months or longer 

after expiration or 

termination of status would 

not be considered 

reasonable.”).

1) In February 1999, Applicant was admitted on a B-2 visa 

until August 1999. She applied for asylum untimely in 

June 2000. An extraordinary circumstance exception 

applies because Applicant was in lawful status during the 

one-year filing period. The issue before the asylum officer 

See Asylum Procedures, 65 

Fed. Reg. 76121, 76123 

(Dec. 6, 2000)

(Supplementary 

Information) (“The 

Department would expect a 
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is whether ten months between the expiration of lawful 

status (August 1999) and the time of filing (June 2000) is a 

reasonable period of time to file. The asylum officer does 

NOT look to the period of time between when the 

application should have been filed (February 2000) and 

when it was actually filed (June 2000).

person in that situation to 

apply for asylum, should 

conditions not improve, 

within a very short period of 

time after the expiration of 

her status. Failure to apply 

within a reasonable time 

after expiration of the status 

would foreclose the person 

from meeting the statutory 

filing requirements.”). 

2) In September 1998, Applicant entered the U.S. on a student 

visa. Her status lapsed in June 2000. She filed for asylum 

in August 2000. Because the I-589 was filed more than one 

year after the last arrival, the issue for the asylum officer is 

whether it was reasonable to delay filing for two months 

after the applicant’s lawful status lapsed. Note: Barring 

facts to the contrary, in this situation a two-month delay 

would ordinarily be considered a reasonable period of time. 

A longer period of time may also be reasonable, depending 

on the circumstances.

3) In March 1999, Applicant was admitted to the U.S. on a B1 visa and authorized to stay until June 1999. She applied 

for asylum in February 2000. This applicant timely filed 

the application within one year of her last arrival, so there 

is no filing deadline issue to adjudicate; whether it was 

reasonable to delay filing for eight months from the visa 

expiration is irrelevant. Applicant has met the one-year 

filing requirement.

VII. CREDIBILITY

A. Overview 

As explained in this lesson, an applicant must demonstrate by 

clear and convincing evidence that he or she applied for asylum 

within one year after the date of last arrival. This may be 

demonstrated either by establishing the date of last arrival or by 

establishing that the applicant was outside the United States less

than one year prior to the date the application was filed. If the 

applicant fails to file within one year from the date of last 

arrival, the applicant may still be eligible to apply for asylum if 

the applicant establishes to the satisfaction of the asylum officer 

that an exception applies. To determine whether the applicant 

met the filing deadline or whether an exception applies, the 

asylum officer will have to evaluate the credibility of the 

applicant’s testimony regarding each of these issues. 

B. Totality of the Circumstances
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In making the determination as to an asylum applicant’s 

credibility, including the credibility of testimony related to the 

elements of the one-year filing deadline, asylum officers should 

consider “the totality of the circumstances, and all relevant 

factors.” As noted in the Congressional conference report issued 

in conjunction with the enactment of the REAL ID Act of 2005, 

the credibility “determination must be reasonable and take into 

consideration the individual circumstances of the specific 

witness and/or applicant.” 

INA § 208 (b)(1)(B)(iii); see

RAIO Training Module, 

Credibility.

H.R. Rep No.. 109-72, at 

167 (2005).

Note: The standard for evaluating the applicant’s credibility

should be distinguished from the standards of proof by which the 

applicant must establish the requirements of the one-year filing 

deadline. For example, to determine whether an applicant has 

established that he or she timely filed the application, the asylum 

officer will evaluate whether, in the totality of the circumstances, 

the applicant can be considered credible as to the facts related to 

his or her date of entry and filing of the application and, if 

credible, whether the testimony establishes by “clear and 

convincing evidence” that the application was filed timely. To 

determine whether an applicant has established that he or she has 

satisfied the requirements of an exception, first, the asylum 

officer will evaluate whether, in the totality of the circumstances, 

the applicant’s testimony related to the existence of an changed 

or extraordinary circumstance is credible and, if so, whether the 

testimony establishes to the “satisfaction of the adjudicator” that 

a changed or extraordinary circumstance exists. Then the 

asylum officer will evaluate whether, in the totality of the 

circumstances, the applicant’s testimony regarding the 

circumstances surrounding the delay in filing is credible and, if 

so, whether the testimony supports a finding that the applicant 

was filed in a reasonable amount of time given the 

circumstances. 

There may be instances where an applicant presents persuasive 

testimony as to one aspect of his or her claim, but does not 

present persuasive testimony as to another aspect. In evaluating 

whether an applicant was credible, asylum officers should 

evaluate the credibility of each factual issue, and then make a 

decision reviewing all relevant factors and the totality of the 

circumstances. Facts bearing on the filing deadline 

determination that should be evaluated for credibility include, 

but are not limited to, the details of the arrival, the applicant’s 

whereabouts during the one year prior to the date of filing, the 

existence of changed or extraordinary circumstances, and the 

reason presented for any delay in filing if a changed or 

extraordinary circumstance is established. The testimony and 

See Kadia v. Gonzales, 501 

F.3d 817, 821-22 (7th Cir. 

2007) (rejecting the doctrine 

of falsus in uno, falsus in 

omnibus - false in one thing, 

false in all things – for 

asylum credibility 

determinations).
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other relevant factors should be evaluated based on the totality of 

the circumstances to determine whether the applicant has 

credibly established the facts related to the elements of the oneyear filing deadline rule. 

Example

Applicant credibly testifies that she is a member of a 

minority religious group. She cannot credibly establish her 

last arrival date or when she was last outside the United 

States. She claimed that she was jailed because of her 

religion, but presents inconsistent testimony concerning 

important details about her arrest and prolonged jail 

sentence. Country conditions information establishes that 

there recently has been a significant escalation of violence 

against the applicant’s religious group in her country. 

Although this applicant’s claims regarding her last arrival 

and prior religious persecution are found not credible, she 

does credibly establish she is a member of a religious 

minority that recently has been targeted. 

Considering the totality of the circumstances, the facts 

related to the applicant’s date of entry are found not 

credible, and thus she has not established by clear and 

convincing evidence that she timely filed her application. 

Considering the totality of the circumstances, the facts 

related to an exception to the one-year filing deadline – the 

applicant’s membership in the targeted religious minority 

and the recent change in conditions in the applicant’s 

country – are found credible. Therefore, the applicant may 

establish that an exception to the one-year filing deadline 

applies and she is eligible to apply for asylum, assuming 

she filed within a reasonable period of time from the 

changed circumstance. The asylum officer would then 

analyze and make a decision on the merits of the asylum 

claim.

a. last arrival 

There should always be an inquiry concerning an 

applicant’s manner, place and time of last arrival. If

satisfactory arrival documents are not available, 

follow-up questions should be asked and the 

credibility of the applicant’s responses evaluated. 

If the applicant cannot credibly establish the date of 

last arrival or cannot remember the date of last arrival, 

the asylum officer should inquire into whether the 
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applicant was outside the United States at any time 

during the 12 months before the filing date. In such 

cases, the applicant’s whereabouts during the 12 

months before the filing date becomes relevant. 

Examples

1) Applicant does not provide credible testimony on 

her manner, place, or time of last arrival. 

Applicant does, however, provide credible 

documentary and/or credible testimonial 

evidence of being in Taiwan seven months 

before the filing date. Because applicant credibly 

testified that she was in Taiwan seven months 

before filing for asylum and therefore must have 

last entered the United States less than 12 

months before the filing date, she has satisfied 

her evidentiary burden of proving with clear and 

convincing evidence that the application was 

filed within one year of her last arrival. 

Note #1: Asylum officers should not assume that 

the absence of detailed and consistent testimony 

regarding the specifics of an applicant’s arrival 

indicate an attempt to circumvent the filing 

deadline requirements. There may be other 

reasons an applicant fails to provide details about 

his or her arrival, such as the desire to protect the 

identity of the person whose passport an 

applicant used, language confusion, fear of 

smugglers, or the natural fading of memory over 

time. The asylum officer should inquire into the 

reasons an applicant fails to provide detailed 

information about his or her arrival and carefully 

consider the response based on the totality of the 

circumstances. If an applicant presents vague or 

inconsistent testimony about the date, manner, 

and place of last entry, the applicant may 

nonetheless be able to establish by clear and 

convincing evidence that he or she was outside 

the United States less than one year prior to the 

filing date and thus met the one-year filing 

requirement.

Note #2: Information pertaining to an applicant’s 

whereabouts prior to 12 months before the filing 

date may be relevant to the last arrival date, but 

only if it indicates the applicant was present in 
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the United States. To illustrate, if the I-589 is 

filed in December 2000, information indicating 

that the applicant was in the United States before 

December 1999 without having left the United 

States and returned could be relevant, because it 

may be probative of whether the applicant was in 

the United States for more than a year before 

applying for asylum. On the other hand, 

information relating to an applicant’s presence 

outside the United States before December 1999 

generally would not be relevant.

2) Applicant files an I-589 in December 2000. He 

testifies that in February 2000 he moved from 

New York to Detroit. Three months later he 

moved to Miami, and four months after that he 

moved to Los Angeles. He testifies that during 

these months he installed billboards for a living. 

Upon further questioning, the asylum officer 

concludes that the applicant’s testimony about 

the different places he claims to have resided 

during those months is not credible. The 

applicant also does not know anything about the 

billboard business. This testimony should be 

evaluated under the totality of the circumstances 

to determine whether the applicant’s claim as to 

his employment is credible. Though the 

applicant may be found not credible as to his 

claimed work as a billboard installer in those 

specific cities, this information alone is 

insufficient to find that he has not established by 

clear and convincing evidence that he filed 

within one year of his last arrival, as the 

information is not related to whether the 

applicant was in the United States for more than 

12 months before the filing date.

3) Applicant files an I-589 in September 2000. His 

testimonial and documentary evidence on being 

in a refugee camp from 1993 to 1998 is not 

credible. The evidence concerning 1993 to 1998 

is not related to whether the applicant was in the 

United States for more than 12 months before the 

filing date, and does not cast doubt on a last 

arrival date. Therefore, it is not relevant and 

cannot be the basis upon which the application is 

referred. For this 1995 to1998 period, facts 

relating to a United States residence would be 
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relevant to the timeliness determination. 

b. changed circumstances 

Whenever a filing is untimely, asylum officers must 

explore reasons that may have caused a late filing, 

such as changes in the law, country conditions, the 

applicant’s personal circumstances, or other areas that 

materially affect the applicant’s asylum eligibility, 

and evaluate the credibility of the applicant’s 

testimony regarding these reasons under the totality of 

the circumstances. Information directly related to the 

existence of a changed circumstance is relevant to the 

determination of whether the applicant is eligible for 

an exception to the filing requirement.

Example: Applicant claims that her sister recently 

published in a newspaper in Applicant’s country an 

article that was highly critical of the government. 

Family members remaining in her country have been 

threatened by the government as a result. Facts 

related to whether the article was published by the 

applicant’s sister and whether publication of such an 

article could affect the applicant’s eligibility for 

asylum are relevant to whether the applicant 

established the existence of a changed circumstance 

for the purposes of the one-year filing deadline. 

Reminder: In evaluating the credibility of the 

presented changed circumstance, the asylum officer 

should not be making a determination on whether the 

applicant is eligible for asylum, only whether the 

applicant is eligible to apply for asylum. 

c. extraordinary circumstances

Whenever a filing is untimely, asylum officers must 

explore events or factors in the applicant’s life that 

may have caused a late filing. Information directly 

related to the existence of an extraordinary 

circumstance is relevant to the determination of 

whether the applicant has established the existence of 

an extraordinary circumstance for the purposes of the 

one-year filing deadline. 

Example: Applicant claimed that she was in a 

serious car accident, which caused her to miss the 

one-year filing deadline. Facts relating to whether the 

accident occurred and the extent of Applicant’s 
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injuries are relevant to the determination of whether 

Applicant established the existence of an 

extraordinary circumstance.

Example: The applicant, a transgender male from 

Honduras, suffered severe and continuous sexual and 

other physical abuse for many years, as well as 

familial and societal discrimination and ostracism on 

account of his sexual orientation. He last entered the 

U.S. in 2003 but did not file for asylum until 2009. 

The applicant credibly explained that he felt isolated 

and was afraid to come forward sooner because he 

was ashamed and fearful of ostracism by friends and 

colleagues and society in general. According to 

medical reports he submitted, he suffered from PTSD 

as a result of the years of trauma he suffered in 

Honduras. His PTSD can be seen as an extraordinary 

circumstance related to the delay in filing during the 

year after he arrived; the 5-year delay afterwards may 

also be considered reasonable based on that medical 

condition. 

See RAIO training module, 

Guidance for Adjudicating 

Lesbian, Gay, Bisexual and 

Intersex Claims.

d. delay in filing

An applicant’s explanation of the circumstances 

surrounding the delay in filing is relevant to the issue 

of whether the applicant established that the 

application was filed in a reasonable period of time 

after the changed or extraordinary circumstance and 

thus established an exception to the filing 

requirement. Asylum officers should inquire into the 

reason for the delay when the delay appears 

unreasonable on its face. 

For example, if an applicant filed for asylum within a 

few months after recovering from a serious illness that 

directly related to the failure to timely file, the delay 

would appear reasonable on its face. The asylum 

officer would not need to inquire into why it took the 

applicant two months to apply. However, if the 

applicant waited eight months after recovering from 

the illness, the asylum officer should inquire into the 

reason for the delay and evaluate the credibility of the 

explanation provided.

Example: A citizen of Bulgaria arrives in the U.S. in 

1989 and files for asylum in January 2001. She is 

very well educated, fluent in English and not 
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represented by an attorney. The asylum officer knows 

that a widely-publicized change in U.S. law in 1998 

may help Applicant’s asylum case. When asked why 

the application was not filed sooner, the applicant 

testified that until late in 2000, she did not know about 

the change in the law or even that asylum existed. 

This change in law, which affects the applicant’s 

eligibility, is a changed circumstance. The officer 

would need to evaluate the credibility of the 

applicant’s explanation of delayed awareness of the 

change in the law to determine whether the delay in 

filing was reasonable.

VIII. SUMMARY

A. Filing Deadline Requirement

Any asylum applicant who applied for asylum on or after April 

1, 1998 (or April 16, 1998, for those applying affirmatively), 

must establish that he or she filed for asylum within one year 

from the date of last arrival or that he or she is eligible for an 

exception to the one-year filing requirement.

B. Calculating the One-Year Period

The one-year period is calculated from the last arrival date (“day 

zero”) up to the same calendar day the following year. If the last 

day for timely filing falls on a Saturday, Sunday, or legal 

holiday, filing on the next business day will be considered 

timely.

C. Burden and Standard of Proof for One-Year Period

The burden of proof is on the applicant to establish by clear and 

convincing evidence that the application was filed within one 

year from the date of the applicant’s last arrival in the United 

States. The burden may be met by presentation of credible 

testimony, documentation, or a combination of both. 

D. Exceptions—Changed or Extraordinary Circumstances

If an applicant did not apply for asylum within one year from 

last arrival in the United States, he or she may still be eligible to 

apply for asylum if the applicant establishes either the existence 

of changed circumstances that materially affect the applicant’s 

eligibility for asylum or extraordinary circumstances related to 

the delay in filing and that the application was filed in a 

reasonable period of time given the circumstances. 
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E. Standard and Burden of Proof for Establishing a Changed 

or Extraordinary Circumstance

The burden of proof is on the applicant to establish to the 

satisfaction of the asylum officer that a changed or extraordinary 

circumstance exists. 

F. Reasonable Period of Delay

Once an applicant establishes the existence of a changed or 

extraordinary circumstance, the applicant bears the burden to 

demonstrate that the application was filed within a reasonable 

amount of time given those circumstances. If the applicant can 

establish that he or she did not become aware of a changed 

circumstance until after it occurred, such delayed awareness 

must be taken into account in determining what constitutes a 

“reasonable period.”

G. Credibility

Asylum officers must consider whether the applicant’s testimony 

related to the one-year filing deadline is credible in the totality of 

circumstances. Facts bearing on the filing deadline adjudication 

that should be evaluated for credibility include the details of the 

arrival, the applicant’s whereabouts before the filing date, the 

existence of changed or extraordinary circumstances, and the 

reason presented for any delay in filing if a changed or 

extraordinary circumstance is established. Credible testimony 

related to these facts should be evaluated to determine whether 

the applicant has established, according to the appropriate 

standard of proof, each element of the one-year filing deadline.