So, what exactly is Mendez-Rojas and what does it have to do with the asylum process? On November 4th, 2020, the American Immigration Council and Northwest Immigrant Rights Project settled litigation they brought against the federal government in a case titled, Mendez Rojas v. Wolf. Mendez Rojas questioned the federal government’s failure to address asylum seekers who had entered the United States at the southern border to the presence of the one-year filing deadline under U.S. asylum law.
Under the terms of the agreement that was settled, recently arrived asylum seekers have until April 22, 2022, to file a notice of class membership along with their asylum applications and have the application considered timely filed and 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 U.S.
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 U.S.
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.
Mendez Rojas is appropriate for those who entered without inspection. Those who entered with a visa cannot be members of the Mendez Rojas.
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 who benefit from the settlement are not barred from asylum by the one-year filing deadline.