The Asylum Clock Class Action Settlement
On November 4, 2013 the Honorable Judge Jones with the U.S. District Court, in Seattle, Washington approved a class action settlement agreement. This agreement arose out of nationwide class action filed by the Legal Action Center (LAC) of the American Immigration Council, Northwest Immigration Rights Project (NWIRP), Gibbs Houston Pauw and the Massachusetts Law Reform Institute. It was originally filed in December 2011. B.H., et. al. v. USCIS, et al. (originally filed as A.B.T., et al. v. USCIS, et al.) and challenged how USCIS and EOIR determine an asylum applicant’s eligibility for an Employment Authorization Document (EAD) (work authorization).
Normally, an asylum applicant is eligible to apply for an EAD only after they have filed their asylum application with an Immigration Judge at a hearing and have satisfied the 180- day waiting period for EAD eligibility. In this system, asylum applicants often have to wait for extended periods of time to ‘file’ their asylum applications with an Immigration Judge and encounter unreasonable obstacles that ‘stop’ their clock.
This Agreement helps remedy a complex problem that often Immigration Judges themselves contribute to. It will bring transparency and accountability for denials of work authority. Furthermore, it will bring greater ease and clarity to the eligibility and application process for asylum seekers.
The Settlement addresses 5 core problems with the current system and creates 5 resolutions to remedy the problems. These resolutions are effective December 3, 2013.
1. Delay in starting the asylum EAD clock caused by an arbitrary rule that asylum applicants can only be filed at a hearing before an Immigration Judge.
~ Resolution: An applicant can now ‘lodge’ an asylum application with an immigration court clerk at a time other than a hearing. A ‘lodged’ application will be considered ‘filed’ for purposes of the asylum EAD clock, and the ‘lodged’ date will start the asylum EAD clock. The application will still need to be ‘filed’ in a hearing before an Immigration Judge. During this time, the clock will be running and an individual who has 150 days accumulated after the ‘lodged’ date will be eligible to submit an application for work authorization.
2. Insufficient time allowed to prepare an expedited asylum case.
~ Resolution: An Immigration Judge must offer a non-detained applicant (whose case is on the expedited docket) an initial individual merits hearing date that is at least 45 days out to have sufficient time to prepare the case. If the applicant accepts that hearing date, the asylum EAD clock will continue to run.
3. EAD clock stopped after denial of asylum application by an Immigration Judge and not restarted even after successful appeal and remand.
~ Resolution: The asylum EAD clock will restart on the date that the BIA remanded a case to the Immigration Judge for reconsideration of the asylum decision (including cases in which the remand originated in the court of appeals).
4. Insufficient notice provided of the right to reschedule a missed asylum interview with USCIS, with the result that asylum EAD clock is often permanently stopped.
~ Resolution: USCIS will now mail a letter to asylum applicants who miss an asylum interview informing them of how missing an interview affects work authorization eligibility; the applicant will have 45 days from the date of the interview to show good cause for having missed the interview and will have an opportunity to meet an expanded interpretation of ‘exceptional circumstances’ for missing the interview after that.
5. Insufficient notice of asylum EAD clock decisions and procedures given to applicants, including insufficient notice regarding the impact of an adjournment on the EAD clock.
~ Resolution: The Immigration Court will provide a written notice to asylum seekers and their counsel about the asylum EAD clock, including the impact of the different hearing and adjournment codes on employment authorization. The Immigration Judge will be instructed to state clearly on the record the reason for adjournment. USCIS will change its notices denying EAD applications so that they are clearer.