United States Court of Appeals For the Seventh Circuit
Immigration — asylum
Where an alien waited more than a year to request asylum, the request was properly denied.
“Section 1208.4(a) provides a regulatory definition of the statutory term ‘extraordinary circumstances’. Subdivision (iv), on which Vrljicak relied before the Board and which he now contends is unconstitutional, reads: ‘The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application’. In other words, an alien properly in the United States may request asylum during a ‘reasonable’ time after authorized status ends, even if the total time between entry and application exceeds one year. The Board concluded that it was not ‘reasonable’ for Vrljicak to wait nine months after his visa expired. He calls the word ‘reasonable’ vague and contends that the Board should have used a rule (such as “180 days”) rather than a standard. Some parts of the Immigration and Nationality Act do use 180 days as the maximum period for action by an alien in unauthorized status following the expiration of a labor visa. See, e.g., 8 U.S.C. §1255(k)(2). Again it is hard to see how this would have helped Vrljicak; he took much more than 180 days. This is not a first amendment overbreadth case, so he can challenge the regulation only as applied. See, e.g., Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449–50 & n.6 (2008); United States v. Salerno, 481 U.S. 739, 745 (1987). Vrljicak told the immigration judge that he did not apply sooner because he expected the situation in Serbia to improve and did not know that there was a deadline; these explanations show that the choice between ‘reasonable’ and some other language in §1208.4(a)(5)(iv) did not affect his conduct.”
Petition for Review of an Order of the Board of Immigration Appeals, Easterbrook, J.