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Wis. L. Rev.


Imagine being forced to flee your home, separated from your children, and undergoing the perilous journey to seek safety and protection in the United States. Upon arrival, you are immediately detained and questioned about your intentions. You explain that you fear for your life and seek asylum protection. You may even undergo a detailed interview with an asylum officer, who finds that you have a significant possibility of establishing asylum eligibility. You are released from detention to pursue your asylum claim in immigration court. You diligently attend check-ins with an Immigration and Customs Enforcement officer for the next two years but struggle to find affordable legal representation as you await your first court date—scheduled two years after your arrival. When you appear at that court date, without an attorney, you learn for the first time that you were required to file an application for asylum with the immigration court within one year of your arrival. Your failure to do so bars you from asylum eligibility. You are now only eligible for a lesser form of relief and will live in limbo—you will never be reunited with your children who remain in danger in your home country, you can never travel abroad, and you will never become a permanent resident or a United States citizen. This absurd situation, faced by thousands of asylum seekers navigating our complex immigration system alone, results from the disastrous interplay of a twenty-year-old law barring asylum for those who do not file within one year of arrival, and an immigration court backlog rendering compliance virtually impossible. Our immigration courts are overwhelmed, with over 521,000 cases pending and a wait, on average, of almost two years for an initial court hearing. More than half of the recently arrived asylum seekers, largely women and children fleeing violence in Central America, lack legal representation. The United States Government provides no notice to asylum seekers of the one-year bar, practically denying all but those with competent legal counsel a meaningful opportunity to file within one year. Drawing upon contemporary cases, this Article is the first to illuminate the human costs of the one-year bar to asylum in this age of unprecedented immigration court backlog: needless deprivation of rights and full protection for vulnerable children and families seeking protection in the United States. It is also the first to analyze the Executive Office for Immigration Review’s recent attempt to solve this problem for asylum seekers represented by legal counsel. In doing so, the Article lays out a detailed road map of complementary reforms and actions by each actor in the immigration system necessary to ensure access to justice—specifically, to provide a fair and meaningful opportunity to apply for asylum for all asylum seekers.