The Tick Tock of Asylum – Preliminary Approval of Changes to Immigration Granted by Federal Judge

On May 8, 2013, Federal Judge Richard A. Jones of the U.S. District Court in Seattle issued an order approving a proposed settlement agreement between several prominent immigration organizations who brought a national class action lawsuit and the federal government. The class consists of asylum seekers who had been denied employment authorization during adjudication of their claims by U.S. Citizen and Immigration Services (USCIS) based on practices and procedures implemented by USCIS and the Executive Office of Immigration Review (EOIR). The settlement of B.H. et al v. United States Citizenship and Immigration Services, et al will drastically alter how USCIS calculates the waiting period for employment authorization, known as the “asylum clock,” and will increase access to work authorization for asylum applicants nationwide.

The “asylum clock” refers to the 180-day waiting period required before asylum applicants may apply for work authorization, also known as an employment authorization document (EAD). EOIR tracks the time period between when the applicant files a completed asylum application and when the court adjudicates the case.  USCIS determines whether the applicant qualifies for work authorization, based on the record (“clock”) managed by EOIR.  Once 180 days have passed, as long as there are no delays caused by the applicant, USCIS is supposed to grant the applicant work authorization.  The concept of tracking the asylum clock for employment authorization purposes, while seemingly straightforward, is actually anything but, as EOIR is authorized to stop the clock based on specific delays in the adjudication process. USCIS and EOIR have issued extensive policies regarding when in the application process the asylum clock starts, when the clock should be stopped (tolled), and when the clock should be restarted.  However, for the applicant, the policies are often unclear and inconsistently applied, and applicants often are uninformed about the rules and the decisions being made in their cases with regards to the asylum clock.

To contest several of USCIS and EOIR’s policies regarding the asylum clock, the American Immigration Council’s Legal Action Center, the Northwest Immigrant Rights Project, the Massachusetts Law Reform Institute, and Gibbs Houston Pauw filed suit in December 2011 in Seattle, Washington. Human Rights Initiative helped with the lawsuit by putting the agencies in touch with many potential plaintiffs (HRI clients) who had issues with their asylum clocks.  The lawsuit alleged that members of the plaintiff class had been unlawfully denied their employment authorization and requested that the federal government be required to change several major policies that significantly impact asylum seekers. The proposed settlement agreement, called the ABT Settlement Agreement, is an exciting development because so many asylum seekers find themselves dependent upon family and friends for survival for years as they often have no ability to work while their cases are being adjudicated, and cases can take up to two years to be heard. The settlement, if approved, will create an individual claim review process in which applicants who can demonstrate membership in the settlement’s class may allege the government’s failure to comply with terms of the agreement.

The first major policy change concerns the ability of asylum applicants to review and challenge their asylum clock status. Before the settlement, asylum applicants were left without any information regarding when or if their clocks had been stopped and had no recourse for requesting review of their status if they believed there was an error. In fact, there were many reported instances in which applicants learned that EOIR had stopped their asylum clock only after their employment authorization requests were denied. However, after the settlement is finalized, immigration judges will be required to state on the record the reason(s) for adjourning each hearing so that a meaningful review is possible if concerns arise about the status of the applicant’s clock. Additionally, EOIR will develop a notice for future applicants that will describe the basics of the employment authorization process and provide information regarding how an applicant can address issues and request corrections to his or her clock status.

A second major challenge for asylum seekers occurs when applicants are unable to accept the first open date for a merits hearing. Currently, when the clock is approaching 180 days, EOIR has a policy of offering dates for merits hearings that are very close to the date of the master calendar hearing, as short as 14 days. This creates significant problems for many applicants because if the applicant does not accept the first offered date, the applicant’s asylum clock stops and the applicant’s hearing is postponed by the court for many months and even years. This policy significantly disadvantages applicants who need time to organize their cases or gather evidence and discourages attorneys (especially those taking these cases pro bono) because they may not have adequate time to prepare. Under the settlement the immigration court must give a minimum of 45 days for all non-detained applicants to prepare for their merits hearings.

The third major policy challenged by the lawsuit involved when the individual’s application was filed for purposes of starting the asylum clock. Before the lawsuit, the clock started when the applicant “filed” the application with the immigration court in an opening hearing even if the hearing was scheduled months or years out due to crowded court dockets. This waiting period has created considerable problems for applicants because many were forced to submit their completed applications to the clerk’s office (called “lodging”) before their hearing to avoid being barred by the one year asylum filing deadline. While immigration courts have disagreed on how to handle this issue, most courts that accepted the application early would not start the asylum clock until the applicant’s actual court date, resulting in the applicant having to wait significantly longer for work authorization eligibility.  Fortunately, the settlement agreement has resolved this dilemma by requiring all immigration courts to accept defensive applications at the clerk’s office. After the application has been “lodged,” USCIS will use the “lodged” date to determine work authorization eligibility.

Fourth, the government has agreed to rework the procedures for calculating the asylum clock following a remanded decision by the Board of Immigration Appeals (BIA), so that the applicant’s clock will be credited with number of days elapsed between the initial decision and the BIA’s order. The asylum clock is stopped when the applicant loses his or her case before an Immigration Judge, but if the denial is later overturned and sent back to the Immigration Judge for further proceedings, USCIS has agreed to recognize the time that the appeal was pending for asylum clock purposes since there is no longer an asylum denial on the record. This aspect of the settlement agreement addressed the common practice of not starting or restarting the asylum clock after the case had been overturned. Because asylum appeals can take 1-2 years to be decided, awarding employment authorization credit to the applicant following a successful appeal allows the applicant to qualify for employment authorization while his or her case is waiting further review by the lower court.

Finally, the fifth major policy change concerns affirmative asylum applicants, and requires USCIS to implement new notice procedures if an asylum applicant misses an interview with an asylum officer. USCIS will be required to mail a letter explaining the consequences of the missed interview, including how the applicant may allege a good cause for not appearing. Following the settlement, USCIS will include a letter explaining how the applicant’s missed interview and referral to court affects employment authorization eligibility and the process of requesting a rescheduled interview based on exceptional circumstances.

After granting approval of the preliminary settlement agreement, the Court scheduled a fairness hearing for September 20, 2013 in which Judge Jones will evaluate the proposed settlement in detail, and grant or deny final approval of the settlement. The settlement terms require USCIS and EOIR to implement interim procedures within six months of the final settlement date and to phase in final procedures no later than two years after the settlement. This agreement represents the successful completion of years of advocacy by immigration organizations, including HRI, concerned with the impact of asylum clock policies on asylum applicants. Many asylum applicants have been denied work authorization and placed in extreme financial hardship by no fault of their own.  This settlement will be a powerful protection for asylum seekers going forward by allowing individuals to live and work with dignity while their asylum cases are pending in our backlogged immigration system.

For more information on the ABT Settlement, see Northwest Immigrants Rights Project’s press release on the Preliminary Order or USCIS’ webpage on the Notice of Proposed Class Action.

Written by Katie Klein, Legal Intern, Penn State Law, Class of 2014. 

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