In the past, the immigration courts and the Board of Immigration Appeals (BIA) has calculated that the yearly period begins on the date of the immigrant’s arrival in the U.S. That is, day one of the calculation begins on the arrival date. This rule has recently been overturned.

The 9th Circuit Court of Appeals determined based upon the plain language of the statute, an immigrant essentially has an extra day to file for asylum. The immigrant in this case first entered the country on a visitor visa on April 9, 2001. He was authorized to remain in the U.S. until October 8, 2001. He overstayed his visa and on April 9, 2002, he filed an application for asylum, seeking to remain in the U.S. because he feared persecution in his home country. His case was denied because the USCIS stated that he failed to apply for asylum within the one-year deadline. By its calculation, the last day for the alien to apply for asylum was April 8, 2002. This was the one year anniversary of his arrival to the U.S.

Because he missed the deadline by a day, the immigrant did not qualify for asylum. On appeal, the man argued he had one year after the date of his arrival to the U.S. That is, the date of his arrival did not count as part of the calculation. Therefore, his application which was filed on April 9, 2002 was timely. The appellate court agreed. The statute states that he had one year after the date of his arrival. That was taken to mean the one year calculation did not begin until the day after his arrival date. For this reason, he had one year and one day to file his asylum application. Therefore, his application was timely in accordance with the asylum statute.

In the grand scheme of things, the new rule does not effect many asylum cases because few are filed so close to the deadline. However, this ruling is important because it settles a long standing dispute as to the last day an asylum applicant may file his case.