On Nov. 4, 2020, the American Immigration Council, Northwest Immigrant Rights Project, and Dobrin & Han, settled litigation they brought against the federal government in a case titled, Mendez Rojas v. Wolf. Mendez Rojas challenged the federal government’s failure to alert asylum seekers who had entered the United States at the southern border to the existence of the one year filing deadline under U.S. asylum law. Plaintiffs’ counsel have written a detailed practice advisory about the settlement, which is summarized below.

Under the terms of the settlement agreement, class members have until April 22, 2022 to file a notice of class membership along with their asylum applications and have the application considered timely filed, that is, compliant with the one year filing deadline. Mendez Rojas encompasses two classes of asylum seekers, each of which includes sub-classes based on whether the noncitizen is in removal proceedings or not in removal proceedings:

Class A comprises individuals who:

• Were encountered by DHS upon arrival or within fourteen days of unlawful entry;
• Were released by DHS after having been found to have a credible fear of persecution or torture within the meaning of 8 U.S.C. § 1225(b)(1)(B)(ii) and 8 C.F.R. §§ 208.30, 1208.30, 1003.42;
• Did not receive individualized notice of the one-year filing deadline for asylum applications; and
• Either
  • Have not filed an asylum application; or
  • Filed an asylum application more than one year after their last arrival in the United States.

Class B comprises individuals who:

• Were encountered by DHS upon arrival or within fourteen days of unlawful entry;
• Expressed a fear of return to their country of origin;
• Were released from DHS custody upon issuance of an NTA;
• Did not receive individualized notice of the one-year filing deadline for asylum applications; and
• Either
  • Have not filed an asylum application; or
  • Filed an asylum application more than one year after their arrival in the United States.

Under the terms of the agreement, class members must submit a written notice of class membership on or before April 22, 2022. There are different notices depending on whether the case is before the immigration court, the Board of Immigration Appeals, or the USCIS Asylum Office.

The Immigrant Rights Clinic at Duke Law School has created resources in both English and Spanish for pro se asylum seekers to determine whether or not they are Mendez Rojas class members. While the resources are geared towards residents of the Carolinas, they could be useful to any pro se asylum seeker.

Mendez Rojas provides critical rights to asylum seekers who were not apprised of the one year filing deadline requirement. Immigration advocates should be sure to review pending cases and consider Mendez Rojas when conducting screenings to ensure that all class members benefit from the settlement are not barred from asylum by the one year filing deadline.