Under 8 U.S.C. 1158(a)(2)(B), an application has the burden of proving by clear and convincing evidence that he applied for asylum within one year of his arrival in the United States or, to satisfaction of the IJ, that he qualifies for an exception to the one-year deadline for the existence of "changed circumstances."
Pursuant to 8 U.S.C. 1158(a)(2)(D), "an untimely application for asylum of an alien may be considered ... if the alien demonstrates to the satisfaction of the Attorney General the existence of changed circumstances which materially affect the applicant's eligibility for asylum."
In Vahora v Holder, the Immigration Judge (IJ) rejected applicant's claim of changed circumstances, because Vahora had already experienced significant mistreatment and harassment by the police before he left India and it was reasonable for him to believe he would experience difficulties if he went back.
On appeal, the 9th Circuit Court of Appeals, held that applicant did demonstrate "changed circumstances" justifying the untimely filing of his asylum application.
The court held that our law does not require that "changed circumstances" constitute an entirely new conflict in an asylum applicant's country of origin, nor does it preclude an individual who has always feared persecution from seeking asylum because the risk of that persecution increases.
The Court notes, 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.
The Court then reaffirms prior holdings which state, an applicant is not required to file for asylum when his claim appears to him to be weak; rather he may wait until circumstances change and the new facts make it substantially more likely that his claim will entitle him to relief.
This is an important ruling as it reaffirms that applicants who are in the U.S., and have been in the U.S. beyond a year since their most recent arrival in the U.S., may still be eligible for asylum, even if they have feared persecution before arriving in the U.S. and have held this fear since their most recent entry in to the U.S.
What we take away from this case is that a new fear of persecution is not required to overcome the one year filing deadline under the "changed circumstance" exception, nor is an Applicant barred from asylum on the basis that he or she feared persecution before entering the U.S. and/or held this fear since his or her most recent arrival in the U.S. and is now applying for asylum beyond on the one year filing deadline.
Alexander G. Carl