Thanks to the settlement
agreement in a nationwide class action lawsuit known as A.B.T., et al. v. USCIS, et al., U.S.
Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration
Review (EOIR) will have to clean up their acts in determining when an asylum
applicant is and isn’t eligible for a work permit (Employment Authorization
Document or EAD).
At issue is the underlying question of how to count the
running of days on the “asylum EAD clock.” If more than 150 days goes by between
the date an applicant files a complete asylum application and the date USCIS or
the EOIR makes decision on the case, the applicant is, by law, supposed to
become eligible for a work permit (issued after another 30 days). The clock
would be, in theory, stopped when delays were the applicant’s fault, and then
The trouble is, various EOIR and USCIS policies for
administering this program in removal proceedings created a world in which it
was all too easy to stop the clock and nearly impossible to get it started up
The settlement agreement attempts to deal with five of the
major causes of unfair clock stoppages, as follows:
refusal to start the clock until the complete asylum application was filed at a
court hearing before an immigration judge. The settlement replaces this
arbitrary rule with one allowing the applicant to lodge the application with
the court clerk before the hearing.
being offered the impossible choice of a hearing 14 days away (expedited, which
keeps the clock running) versus months or years away (regular court schedule).
The settlement requires that expedited hearings for non-detained applicants be
scheduled at least 45 days into the future, so that they have enough time to
prepare without having to stop the clock.
- EOIR failures to restart the clock after an
appeal and remand following a denial. The settlement provides that the
clock must be restarted on the date that the Board of Immigration Appeals (BIA)
sends the case back to the immigration judge for reconsideration, plus be
credited with the number of days that the case was on appeal.
providing inadequate notice of consequences of missing an asylum interview.
The legal consequence of missing a USCIS asylum interview is that the EAD clock
is stopped forever – but most applicants don’t know that. Under the settlement agreement,
USCIS will notify asylum applicants who miss their interview of how this
impacts their right to an EAD, and give them 45 days to show good cause for missing
information about EAD clock decisions and procedures. It’s common for
asylum merits hearing to stretch over more than one day. Every time the
immigration judge schedules a continued hearing, he or she must enter an “adjournment
code” into the file. That code dictates whether the EAD clock is stopped or
not. So it hardly seems fair for the IJ not to mention which code is being
entered or why. The settlement provides that the Immigration Court will give
asylum applicants written notice about the impact of the different adjournment codes
and the immigration judge will state clearly, on the record, the reason for adjournment.
The settlement agreement is not in effect yet, but assuming
all goes well and the court signs off on it as expected, it will go into effect
in early November 2013. For more information, see the excellent set of FAQs
issued by the parties who brought the suit.
Effective date: July 10, 2013